CONSTI LAW II ACJUCO 1
SEARCH AND SEIZURE
Rule 126, Rules of Court
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS,
JOHN J. BROOKS and KARL BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as
SECRETARY OF JUSTICE; JOSE LUKBAN, in
his capacity as Acting Director, National Bureau
of Investigation; SPECIAL PROSECUTORS
PEDRO D. CENZON, EFREN I. PLANA and
MANUEL VILLAREAL, JR. and ASST. FISCAL
MANASES G. REYES; JUDGE AMADO ROAN,
Municipal Court of Manila; JUDGE ROMAN
CANSINO, Municipal Court of Manila; JUDGE
HERMOGENES CALUAG, Court of First
Instance of Rizal-Quezon City Branch, and
JUDGE DAMIAN JIMENEZ, Municipal Court of
Quezon City, respondents.
CONCEPCION, C.J.:
Upon application of the officers of the government
named on the margin1 — hereinafter referred to as
Respondents-Prosecutors — several judges2 —
hereinafter referred to as Respondents-Judges —
issued, on different dates,3 a total of 42 search
warrants against petitioners herein4 and/or the
corporations of which they were officers,5 directed
to the any peace officer, to search the persons
above-named and/or the premises of their offices,
warehouses and/or residences, and to seize and
take possession of the following personal property
to wit:
Books of accounts, financial records, vouchers,
correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other
documents and/or papers showing all business
transactions including disbursements receipts,
balance sheets and profit and loss statements and
Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled
and proceeds or fruits of the offense," or "used or
intended to be used as the means of committing
the offense," which is described in the applications
adverted to above as "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue
(Code) and the Revised Penal Code."
Alleging that the aforementioned search warrants
are null and void, as contravening the Constitution
and the Rules of Court — because, inter alia: (1)
they do not describe with particularity the
documents, books and things to be seized; (2) cash
money, not mentioned in the warrants, were
actually seized; (3) the warrants were issued to fish
evidence against the aforementioned petitioners in
deportation cases filed against them; (4) the
searches and seizures were made in an illegal
manner; and (5) the documents, papers and cash
money seized were not delivered to the courts that
issued the warrants, to be disposed of in
accordance with law — on March 20, 1962, said
petitioners filed with the Supreme Court this original
action for certiorari, prohibition, mandamus and
injunction, and prayed that, pending final
disposition of the present case, a writ of preliminary
injunction be issued restraining Respondents-
Prosecutors, their agents and /or representatives
from using the effects seized as aforementioned or
any copies thereof, in the deportation cases already
adverted to, and that, in due course, thereafter,
decision be rendered quashing the contested
search warrants and declaring the same null and
void, and commanding the respondents, their
agents or representatives to return to petitioners
herein, in accordance with Section 3, Rule 67, of
the Rules of Court, the documents, papers, things
and cash moneys seized or confiscated under the
search warrants in question.
In their answer, respondents-prosecutors alleged, 6
(1) that the contested search warrants are valid and
have been issued in accordance with law; (2) that
the defects of said warrants, if any, were cured by
petitioners' consent; and (3) that, in any event, the
effects seized are admissible in evidence against
herein petitioners, regardless of the alleged
illegality of the aforementioned searches and
seizures.
On March 22, 1962, this Court issued the writ of
preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the
writ was partially lifted or dissolved, insofar as the
papers, documents and things seized from the
offices of the corporations above mentioned are
concerned; but, the injunction was maintained as
regards the papers, documents and things found
and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized
under the alleged authority of the warrants in
question may be split into two (2) major groups,
namely: (a) those found and seized in the offices of
the aforementioned corporations, and (b) those
found and seized in the residences of petitioners
herein.
As regards the first group, we hold that petitioners
herein have no cause of action to assail the legality
of the contested warrants and of the seizures made
in pursuance thereof, for the simple reason that
said corporations have their respective
personalities, separate and distinct from the
personality of herein petitioners, regardless of the
amount of shares of stock or of the interest of each
of them in said corporations, and whatever the
offices they hold therein may be.8 Indeed, it is well
settled that the legality of a seizure can be
contested only by the party whose rights have been
impaired thereby,9 and that the objection to an
unlawful search and seizure is purely personal and
cannot be availed of by third parties. 10
Consequently, petitioners herein may not validly
object to the use in evidence against them of the
documents, papers and things seized from the
offices and premises of the corporations adverted
to above, since the right to object to the admission
of said papers in evidence belongs exclusively to
the corporations, to whom the seized effects
belong, and may not be invoked by the corporate
officers in proceedings against them in their
individual capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining
possession of papers belonging to the corporation
did not relate to nor did it affect the personal
defendants. If these papers were unlawfully seized
and thereby the constitutional rights of or any one
were invaded, they were the rights of the
corporation and not the rights of the other
defendants. Next, it is clear that a question of the
lawfulness of a seizure can be raised only by one
whose rights have been invaded. Certainly, such a
seizure, if unlawful, could not affect the
constitutional rights of defendants whose property
had not been seized or the privacy of whose homes
had not been disturbed; nor could they claim for
themselves the benefits of the Fourth Amendment,
when its violation, if any, was with reference to the
rights of another. Remus vs. United States
(C.C.A.)291 F. 501, 511. It follows, therefore, that
the question of the admissibility of the evidence
based on an alleged unlawful search and seizure
CONSTI LAW II ACJUCO 2
does not extend to the personal defendants but
embraces only the corporation whose property was
taken. . . . (A Guckenheimer & Bros. Co. vs. United
States, [1925] 3 F. 2d. 786, 789, Emphasis
supplied.)
With respect to the documents, papers and things
seized in the residences of petitioners herein, the
aforementioned resolution of June 29, 1962, lifted
the writ of preliminary injunction previously issued
by this Court, 12 thereby, in effect, restraining
herein Respondents-Prosecutors from using them
in evidence against petitioners herein.
In connection with said documents, papers and
things, two (2) important questions need be settled,
namely: (1) whether the search warrants in
question, and the searches and seizures made
under the authority thereof, are valid or not, and (2)
if the answer to the preceding question is in the
negative, whether said documents, papers and
things may be used in evidence against petitioners
herein.1äwphï1.ñët
Petitioners maintain that the aforementioned search
warrants are in the nature of general warrants and
that accordingly, the seizures effected upon the
authority there of are null and void. In this
connection, the Constitution 13 provides:
The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched, and the persons or things to be seized.
Two points must be stressed in connection with this
constitutional mandate, namely: (1) that no warrant
shall issue but upon probable cause, to be
determined by the judge in the manner set forth in
said provision; and (2) that the warrant shall
particularly describe the things to be seized.
None of these requirements has been complied
with in the contested warrants. Indeed, the same
were issued upon applications stating that the
natural and juridical person therein named had
committed a "violation of Central Ban Laws, Tariff
and Customs Laws, Internal Revenue (Code) and
Revised Penal Code." In other words, no specific

offense had been alleged in said applications. The
averments thereof with respect to the offense
committed were abstract. As a consequence, it was
impossible for the judges who issued the warrants
to have found the existence of probable cause, for
the same presupposes the introduction of
competent proof that the party against whom it is
sought has performed particular acts, or committed
specific omissions, violating a given provision of our
criminal laws. As a matter of fact, the applications
involved in this case do not allege any specific acts
performed by herein petitioners. It would be the
legal heresy, of the highest order, to convict
anybody of a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue (Code) and
Revised Penal Code," — as alleged in the
aforementioned applications — without reference to
any determinate provision of said laws or
To uphold the validity of the warrants in question
would be to wipe out completely one of the most
fundamental rights guaranteed in our Constitution,
for it would place the sanctity of the domicile and
the privacy of communication and correspondence
at the mercy of the whims caprice or passion of
peace officers. This is precisely the evil sought to
be remedied by the constitutional provision above
quoted — to outlaw the so-called general warrants.
It is not difficult to imagine what would happen, in
times of keen political strife, when the party in
power feels that the minority is likely to wrest it,
even though by legal means.
Such is the seriousness of the irregularities
committed in connection with the disputed search
warrants, that this Court deemed it fit to amend
Section 3 of Rule 122 of the former Rules of Court
14 by providing in its counterpart, under the
Revised Rules of Court 15 that "a search warrant
shall not issue but upon probable cause in
connection with one specific offense." Not satisfied
with this qualification, the Court added thereto a
paragraph, directing that "no search warrant shall
issue for more than one specific offense."
The grave violation of the Constitution made in the
application for the contested search warrants was
compounded by the description therein made of the
effects to be searched for and seized, to wit:
Books of accounts, financial records, vouchers,
journals, correspondence, receipts, ledgers,
portfolios, credit journals, typewriters, and other
documents and/or papers showing all business
CONSTI LAW II ACJUCO 3
transactions including disbursement receipts,
balance sheets and related profit and loss
statements.
Thus, the warrants authorized the search for and
seizure of records pertaining to all business
transactions of petitioners herein, regardless of
whether the transactions were legal or illegal. The
warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the
explicit command of our Bill of Rights — that the
things to be seized be particularly described — as
well as tending to defeat its major objective: the
elimination of general warrants.
Relying upon Moncado vs. People's Court (80 Phil.
1), Respondents-Prosecutors maintain that, even if
the searches and seizures under consideration
were unconstitutional, the documents, papers and
things thus seized are admissible in evidence
against petitioners herein. Upon mature
deliberation, however, we are unanimously of the
opinion that the position taken in the Moncado case
must be abandoned. Said position was in line with
the American common law rule, that the criminal
should not be allowed to go free merely "because
the constable has blundered," 16 upon the theory
that the constitutional prohibition against
unreasonable searches and seizures is protected
by means other than the exclusion of evidence
unlawfully obtained, 17 such as the common-law
action for damages against the searching officer,
against the party who procured the issuance of the
search warrant and against those assisting in the
execution of an illegal search, their criminal
punishment, resistance, without liability to an
unlawful seizure, and such other legal remedies as
may be provided by other laws.
However, most common law jurisdictions have
already given up this approach and eventually
adopted the exclusionary rule, realizing that this is
the only practical means of enforcing the
constitutional injunction against unreasonable
searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of
evidence competent as such, which has been
unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional
privilege. In earlier times the action of trespass
against the offending official may have been

protection enough; but that is true no longer. Only
in case the prosecution which itself controls the
seizing officials, knows that it cannot profit by their
wrong will that wrong be repressed.18
In fact, over thirty (30) years before, the Federal
Supreme Court had already declared:
If letters and private documents can thus be seized
and held and used in evidence against a citizen
accused of an offense, the protection of the 4th
Amendment, declaring his rights to be secure
against such searches and seizures, is of no value,
and, so far as those thus placed are concerned,
might as well be stricken from the Constitution. The
efforts of the courts and their officials to bring the
guilty to punishment, praiseworthy as they are, are
not to be aided by the sacrifice of those great
principles established by years of endeavor and
suffering which have resulted in their embodiment
in the fundamental law of the land.19
This view was, not only reiterated, but, also,
broadened in subsequent decisions on the same
Federal Court. 20 After reviewing previous
decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's
constitutional documentation of the right of privacy
free from unreasonable state intrusion, and after its
dozen years on our books, are led by it to close the
only courtroom door remaining open to evidence
secured by official lawlessness in flagrant abuse of
that basic right, reserved to all persons as a
specific guarantee against that very same unlawful
conduct. We hold that all evidence obtained by
searches and seizures in violation of the
Constitution is, by that same authority, inadmissible
in a State.
Since the Fourth Amendment's right of privacy has
been declared enforceable against the States
through the Due Process Clause of the Fourteenth,
it is enforceable against them by the same sanction
of exclusion as it used against the Federal
Government. Were it otherwise, then just as without
the Weeks rule the assurance against
unreasonable federal searches and seizures would
be "a form of words," valueless and underserving of
mention in a perpetual charter of inestimable
human liberties, so too, without that rule the
freedom from state invasions of privacy would be
so ephemeral and so neatly severed from its
CONSTI LAW II ACJUCO 4
conceptual nexus with the freedom from all brutish
means of coercing evidence as not to permit this
Court's high regard as a freedom "implicit in the
concept of ordered liberty." At the time that the
Court held in Wolf that the amendment was
applicable to the States through the Due Process
Clause, the cases of this Court as we have seen,
had steadfastly held that as to federal officers the
Fourth Amendment included the exclusion of the
evidence seized in violation of its provisions. Even
Wolf "stoutly adhered" to that proposition. The right
to when conceded operatively enforceable against
the States, was not susceptible of destruction by
avulsion of the sanction upon which its protection
and enjoyment had always been deemed
dependent under the Boyd, Weeks and
Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all
constitutionally unreasonable searches — state or
federal — it was logically and constitutionally
necessarily that the exclusion doctrine — an
essential part of the right to privacy — be also
insisted upon as an essential ingredient of the right
newly recognized by the Wolf Case. In short, the
admission of the new constitutional Right by Wolf
could not tolerate denial of its most important
constitutional privilege, namely, the exclusion of the
evidence which an accused had been forced to
give by reason of the unlawful seizure. To hold
otherwise is to grant the right but in reality to
withhold its privilege and enjoyment. Only last year
the Court itself recognized that the purpose of the
exclusionary rule to "is to deter — to compel
respect for the constitutional guaranty in the only
effectively available way — by removing the
incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the
State tends to destroy the entire system of
constitutional restraints on which the liberties of the
people rest. Having once recognized that the right
to privacy embodied in the Fourth Amendment is
enforceable against the States, and that the right to
be secure against rude invasions of privacy by
state officers is, therefore constitutional in origin,
we can no longer permit that right to remain an
empty promise. Because it is enforceable in the
same manner and to like effect as other basic rights
secured by its Due Process Clause, we can no
longer permit it to be revocable at the whim of any
police officer who, in the name of law enforcement
itself, chooses to suspend its enjoyment. Our
decision, founded on reason and truth, gives to the
individual no more than that which the Constitution

guarantees him to the police officer no less than
that to which honest law enforcement is entitled,
and, to the courts, that judicial integrity so
necessary in the true administration of justice.
(emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not
only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable
searches and seizures. To be sure, if the applicant
for a search warrant has competent evidence to
establish probable cause of the commission of a
given crime by the party against whom the warrant
is intended, then there is no reason why the
applicant should not comply with the requirements
of the fundamental law. Upon the other hand, if he
has no such competent evidence, then it is not
possible for the Judge to find that there is probable
cause, and, hence, no justification for the issuance
of the warrant. The only possible explanation (not
justification) for its issuance is the necessity of
fishing evidence of the commission of a crime. But,
then, this fishing expedition is indicative of the
absence of evidence to establish a probable cause.
Moreover, the theory that the criminal prosecution
of those who secure an illegal search warrant
and/or make unreasonable searches or seizures
would suffice to protect the constitutional guarantee
under consideration, overlooks the fact that
violations thereof are, in general, committed By
agents of the party in power, for, certainly, those
belonging to the minority could not possibly abuse
a power they do not have. Regardless of the
handicap under which the minority usually — but,
understandably — finds itself in prosecuting agents
of the majority, one must not lose sight of the fact
that the psychological and moral effect of the
possibility 21 of securing their conviction, is
watered down by the pardoning power of the party
for whose benefit the illegality had been committed.
In their Motion for Reconsideration and Amendment
of the Resolution of this Court dated June 29, 1962,
petitioners allege that Rooms Nos. 81 and 91 of
Carmen Apartments, House No. 2008, Dewey
Boulevard, House No. 1436, Colorado Street, and
Room No. 304 of the Army-Navy Club, should be
included among the premises considered in said
Resolution as residences of herein petitioners,
Harry S. Stonehill, Robert P. Brook, John J. Brooks
and Karl Beck, respectively, and that, furthermore,
the records, papers and other effects seized in the
offices of the corporations above referred to include
CONSTI LAW II ACJUCO 5
personal belongings of said petitioners and other
effects under their exclusive possession and
control, for the exclusion of which they have a
standing under the latest rulings of the federal
courts of federal courts of the United States. 22
We note, however, that petitioners' theory,
regarding their alleged possession of and control
over the aforementioned records, papers and
effects, and the alleged "personal" nature thereof,
has Been Advanced, not in their petition or
amended petition herein, but in the Motion for
Reconsideration and Amendment of the Resolution
of June 29, 1962. In other words, said theory would
appear to be readjustment of that followed in said
petitions, to suit the approach intimated in the
Resolution sought to be reconsidered and
amended. Then, too, some of the affidavits or
copies of alleged affidavits attached to said motion
for reconsideration, or submitted in support thereof,
contain either inconsistent allegations, or
allegations inconsistent with the theory now
advanced by petitioners herein.
Upon the other hand, we are not satisfied that the
allegations of said petitions said motion for
reconsideration, and the contents of the
aforementioned affidavits and other papers
submitted in support of said motion, have
sufficiently established the facts or conditions
contemplated in the cases relied upon by the
petitioners; to warrant application of the views
therein expressed, should we agree thereto. At any
rate, we do not deem it necessary to express our
opinion thereon, it being best to leave the matter
open for determination in appropriate cases in the
future.
We hold, therefore, that the doctrine adopted in the
Moncado case must be, as it is hereby, abandoned;
that the warrants for the search of three (3)
residences of herein petitioners, as specified in the
Resolution of June 29, 1962, are null and void; that
the searches and seizures therein made are illegal;
that the writ of preliminary injunction heretofore
issued, in connection with the documents, papers
and other effects thus seized in said residences of
herein petitioners is hereby made permanent; that
the writs prayed for are granted, insofar as the
documents, papers and other effects so seized in
the aforementioned residences are concerned; that
the aforementioned motion for Reconsideration and
Amendment should be, as it is hereby, denied; and
that the petition herein is dismissed and the writs

prayed for denied, as regards the documents,
papers and other effects seized in the twenty-nine
(29) places, offices and other premises enumerated
in the same Resolution, without special
pronouncement as to costs. It is so ordered.
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR.,
BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER,
PRESIDENTIAL SECURITY COMMAND, THE
JUDGE ADVOCATE GENERAL, ET AL.,
respondents.
Lorenzo M. Tañada, Wigberto E. Tañada,
Martiniano Vivo, Augusto Sanchez, Joker P.
Arroyo, Jejomar Binay and Rene Saguisag for
petitioners.
The Solicitor General for respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and
mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search
warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive
Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as
No. 19, Road 3, Project 6, Quezon City, and 784
Units C & D, RMS Building, Quezon Avenue,
Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum" newspapers,
respectively, were searched, and office and printing
machines, equipment, paraphernalia, motor
vehicles and other articles used in the printing,
publication and distribution of the said newspapers,
as well as numerous papers, documents, books
and other written literature alleged to be in the
possession and control of petitioner Jose Burgos,
Jr. publisher-editor of the "We Forum" newspaper,
were seized.
Petitioners further pray that a writ of preliminary
mandatory and prohibitory injunction be issued for
CONSTI LAW II ACJUCO 6
the return of the seized articles, and that
respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge
Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns,
subordinates, substitute or successors" be enjoined
from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the othat
issued them. 3 But this procedural flaw
notwithstanding, we take cognizance of this petition
in view of the seriousness and urgency of the
constitutional issues raised not to mention the
public interest generated by the search of the "We
Forum" offices, which was televised in Channel 7
and widely publicized in all metropolitan dailies.
The existence of this special circumstance justifies
this Court to exercise its inherent power to suspend
its rules. In the words of the revered Mr. Justice
Abad Santos in the case of C. Vda. de Ordoveza v.
Raymundo, 4 "it is always in the power of the court
[Supreme Court] to suspend its rules or to except a
particular case from its operation, whenever the
purposes of justice require it...".
Respondents likewise urge dismissal of the petition
on ground of laches. Considerable stress is laid on
the fact that while said search warrants were issued
on December 7, 1982, the instant petition
impugning the same was filed only on June 16,
1983 or after the lapse of a period of more than six
[6] months.
Laches is failure or negligence for an unreasonable
and unexplained length of time to do that which, by
exercising due diligence, could or should have
been done earlier. It is negligence or omission to
assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either
has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained
the reason for the delay in the filing of the petition
thus:
Respondents should not find fault, as they now do
[p. 1, Answer, p. 3, Manifestation] with the fact that
the Petition was filed on June 16, 1983, more than
half a year after the petitioners' premises had been
raided.
The climate of the times has given petitioners no
other choice. If they had waited this long to bring
their case to court, it was because they tried at first
to exhaust other remedies. The events of the past

eleven fill years had taught them that everything in
this country, from release of public funds to release
of detained persons from custody, has become a
matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon
suggestion of persons close to the President, like
Fiscal Flaminiano, sent a letter to President
Marcos, through counsel Antonio Coronet asking
the return at least of the printing equipment and
vehicles. And after such a letter had been sent,
through Col. Balbino V. Diego, Chief Intelligence
and Legal Officer of the Presidential Security
Command, they were further encouraged to hope
that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners
finally decided to come to Court. [pp. 123-124,
Rollo]
Although the reason given by petitioners may not
be flattering to our judicial system, We find no
ground to punish or chastise them for an error in
judgment. On the contrary, the extrajudicial efforts
exerted by petitioners quite evidently negate the
presumption that they had abandoned their right to
the possession of the seized property, thereby
refuting the charge of laches against them.
Respondents also submit the theory that since
petitioner Jose Burgos, Jr. had used and marked as
evidence some of the seized documents in Criminal
Case No. Q- 022872, he is now estopped from
challenging the validity of the search warrants. We
do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose
Burgos, Jr. and he can do whatever he pleases
with them, within legal bounds. The fact that he has
used them as evidence does not and cannot in any
way affect the validity or invalidity of the search
warrants assailed in this petition.
Several and diverse reasons have been advanced
by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged
failure to conduct an examination under oath or
affirmation of the applicant and his witnesses, as
mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules
of Court .6 This objection, however, may properly
be considered moot and academic, as petitioners
themselves conceded during the hearing on August
CONSTI LAW II ACJUCO 7
9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and
his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b]
were used to search two distinct places: No. 19,
Road 3, Project 6, Quezon City and 784 Units C &
D, RMS Building, Quezon Avenue, Quezon City,
respectively. Objection is interposed to the
execution of Search Warrant No. 20-82[b] at the
latter address on the ground that the two search
warrants pinpointed only one place where petitioner
Jose Burgos, Jr. was allegedly keeping and
concealing the articles listed therein, i.e., No. 19,
Road 3, Project 6, Quezon City. This assertion is
based on that portion of Search Warrant No. 20-
82[b] which states:
Which have been used, and are being used as
instruments and means of committing the crime of
subversion penalized under P.D. 885 as amended
and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical
error. Precisely, two search warrants were applied
for and issued because the purpose and intent
were to search two distinct premises. It would be
quite absurd and illogical for respondent judge to
have issued two warrants intended for one and the
same place. Besides, the addresses of the places
sought to be searched were specifically set forth in
the application, and since it was Col. Abadilla
himself who headed the team which executed the
search warrants, the ambiguity that might have
arisen by reason of the typographical error is more
apparent than real. The fact is that the place for
which Search Warrant No. 20- 82[b] was applied for
was 728 Units C & D, RMS Building, Quezon
Avenue, Quezon City, which address appeared in
the opening paragraph of the said warrant. 7
Obviously this is the same place that respondent
judge had in mind when he issued Warrant No. 20-
82 [b].
In the determination of whether a search warrant
describes the premises to be searched with
sufficient particularity, it has been held "that the
executing officer's prior knowledge as to the place
intended in the warrant is relevant. This would
seem to be especially true where the executing
officer is the affiant on whose affidavit the warrant
had issued, and when he knows that the judge who
issued the warrant intended the building described

in the affidavit, And it has also been said that the
executing officer may look to the affidavit in the
official court file to resolve an ambiguity in the
warrant as to the place to be searched." 8
3. Another ground relied upon to annul the
search warrants is the fact that although the
warrants were directed against Jose Burgos, Jr.
alone, articles b belonging to his co-petitioners
Jose Burgos, Sr., Bayani Soriano and the J. Burgos
Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court,
enumerates the personal properties that may be
seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. — A search
warrant may be issued for the search and seizure
of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other
proceeds or fruits of the offense; and
[c] Property used or intended to be used as the
means of committing an offense.
The above rule does not require that the property to
be seized should be owned by the person against
whom the search warrant is directed. It may or may
not be owned by him. In fact, under subsection [b]
of the above-quoted Section 2, one of the
properties that may be seized is stolen property.
Necessarily, stolen property must be owned by one
other than the person in whose possession it may
be at the time of the search and seizure.
Ownership, therefore, is of no consequence, and it
is sufficient that the person against whom the
warrant is directed has control or possession of the
property sought to be seized, as petitioner Jose
Burgos, Jr. was alleged to have in relation to the
articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that
real properties were seized under the disputed
warrants. Under Article 415[5] of the Civil Code of
the Philippines, "machinery, receptables,
instruments or implements intended by the owner
of the tenement for an industry or works which may
be carried on in a building or on a piece of land and
which tend directly to meet the needs of the said
industry or works" are considered immovable
property. In Davao Sawmill Co. v. Castillo9 where
CONSTI LAW II ACJUCO 8
this legal provision was invoked, this Court ruled
that machinery which is movable by nature
becomes immobilized when placed by the owner of
the tenement, property or plant, but not so when
placed by a tenant, usufructuary, or any other
person having only a temporary right, unless such
person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the
owners of the land and/or building on which the
machineries were placed. This being the case, the
machineries in question, while in fact bolted to the
ground remain movable property susceptible to
seizure under a search warrant.
5. The questioned search warrants were issued by
respondent judge upon application of Col. Rolando
N. Abadilla Intelligence Officer of the P.C.
Metrocom.10 The application was accompanied by
the Joint Affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, 11 members of the Metrocom
Intelligence and Security Group under Col. Abadilla
which conducted a surveillance of the premises
prior to the filing of the application for the search
warrants on December 7, 1982.
It is contended by petitioners, however, that the
abovementioned documents could not have
provided sufficient basis for the finding of a
probable cause upon which a warrant may validly
issue in accordance with Section 3, Article IV of the
1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant
of arrest shall issue except upon probable cause to
be determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized.
We find petitioners' thesis impressed with merit.
Probable cause for a search is defined as such
facts and circumstances which would lead a
reasonably discreet and prudent man to believe
that an offense has been committed and that the
objects sought in connection with the offense are in
the place sought to be searched. And when the
search warrant applied for is directed against a
newspaper publisher or editor in connection with
the publication of subversive materials, as in the
case at bar, the application and/or its supporting
affidavits must contain a specification, stating with

particularity the alleged subversive material he has
published or is intending to publish. Mere
generalization will not suffice. Thus, the broad
statement in Col. Abadilla's application that
petitioner "is in possession or has in his control
printing equipment and other paraphernalia, news
publications and other documents which were used
and are all continuously being used as a means of
committing the offense of subversion punishable
under Presidential Decree 885, as amended ..." 12
is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such
particulars as would justify a finding of the
existence of probable cause, said allegation cannot
serve as basis for the issuance of a search warrant
and it was a grave error for respondent judge to
have done so.
Equally insufficient as basis for the determination of
probable cause is the statement contained in the
joint affidavit of Alejandro M. Gutierrez and Pedro
U. Tango, "that the evidence gathered and collated
by our unit clearly shows that the premises above-
mentioned and the articles and things above-
described were used and are continuously being
used for subversive activities in conspiracy with,
and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6
Movement." 13
In mandating that "no warrant shall issue except
upon probable cause to be determined by the
judge, ... after examination under oath or
affirmation of the complainant and the witnesses he
may produce; 14 the Constitution requires no less
than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a
search warrant may be justified. In Alvarez v. Court
of First Instance, 15 this Court ruled that "the oath
required must refer to the truth of the facts within
the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to
convince the committing magistrate, not the
individual making the affidavit and seeking the
issuance of the warrant, of the existence of
probable cause." As couched, the quoted averment
in said joint affidavit filed before respondent judge
hardly meets the test of sufficiency established by
this Court in Alvarez case.
Another factor which makes the search warrants
under consideration constitutionally objectionable is
that they are in the nature of general warrants. The
CONSTI LAW II ACJUCO 9
search warrants describe the articles sought to be
seized in this wise:
1] All printing equipment, paraphernalia,
paper, ink, photo (equipment, typewriters, cabinets,
tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or
connected in the printing of the "WE FORUM"
newspaper and any and all documents
communication, letters and facsimile of prints
related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets,
books, and other publication to promote the
objectives and piurposes of the subversive
organization known as Movement for Free
Philippines, Light-a-Fire Movement and April 6
Movement; and,
3] Motor vehicles used in the
distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more
particularly,
1] Toyota-Corolla, colored yellow with Plate
No. NKA 892;
2] DATSUN pick-up colored white with Plate
No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with
Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate
No. NGV 427 with marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant
which authorized the search for "books, records,
pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments
concerning the Communist Party in Texas," was
declared void by the U.S. Supreme Court for being
too general. In like manner, directions to "seize any
evidence in connectionwith the violation of SDC 13-
3703 or otherwise" have been held too general,
and that portion of a search warrant which
authorized the seizure of any "paraphernalia which
could be used to violate Sec. 54-197 of the
Connecticut General Statutes [the statute dealing
with the crime of conspiracy]" was held to be a
general warrant, and therefore invalid. 17 The
description of the articles sought to be seized under

the search warrants in question cannot be
characterized differently.
In the Stanford case, the U.S. Supreme Courts
calls to mind a notable chapter in English history:
the era of disaccord between the Tudor
Government and the English Press, when "Officers
of the Crown were given roving commissions to
search where they pleased in order to suppress
and destroy the literature of dissent both Catholic
and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy
of our government to suppress any newspaper or
publication that speaks with "the voice of non-
conformity" but poses no clear and imminent
danger to state security.
As heretofore stated, the premises searched were
the business and printing offices of the
"Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and
seizure, these premises were padlocked and
sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, 18 and
constitutes a virtual denial of petitioners' freedom to
express themselves in print. This state of being is
patently anathematic to a democratic framework
where a free, alert and even militant press is
essential for the political enlightenment and growth
of the citizenry.
Respondents would justify the continued sealing of
the printing machines on the ground that they have
been sequestered under Section 8 of Presidential
Decree No. 885, as amended, which authorizes
"the sequestration of the property of any person,
natural or artificial, engaged in subversive activities
against the government and its duly constituted
authorities ... in accordance with implementing
rules and regulations as may be issued by the
Secretary of National Defense." It is doubtful
however, if sequestration could validly be effected
in view of the absence of any implementing rules
and regulations promulgated by the Minister of
National Defense.
Besides, in the December 10, 1982 issue of the
Daily Express, it was reported that no less than
President Marcos himself denied the request of the
CONSTI LAW II ACJUCO 10
military authorities to sequester the property seized
from petitioners on December 7, 1982. Thus:
The President denied a request flied by
government prosecutors for sequestration of the
WE FORUM newspaper and its printing presses,
according to Information Minister Gregorio S.
Cendana.
On the basis of court orders, government agents
went to the We Forum offices in Quezon City and
took a detailed inventory of the equipment and all
materials in the premises.
Cendaña said that because of the denial the
newspaper and its equipment remain at the
disposal of the owners, subject to the discretion of
the court. 19
That the property seized on December 7, 1982 had
not been sequestered is further confirmed by the
reply of then Foreign Minister Carlos P. Romulo to
the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President
Marcos, expressing alarm over the "WE FORUM "
case. 20 In this reply dated February 11, 1983,
Minister Romulo stated:
2. Contrary to reports, President Marcos
turned down the recommendation of our authorities
to close the paper's printing facilities and confiscate
the equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants
Nos. 20-82[a] and 20-82[b] issued by respondent
judge on December 7, 1982 are hereby declared
null and void and are accordingly set aside. The
prayer for a writ of mandatory injunction for the
return of the seized articles is hereby granted and
all articles seized thereunder are hereby ordered
released to petitioners. No costs.
SO ORDERED.

G.R. No. 81561 January 18, 1991
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee
vs.
ANDRE MARTI, accused-appellant.
The Solicitor General for plaintiff-appellee.
Reynaldo B. Tatoy and Abelardo E. Rogacion
for accused-appellant.
BIDIN, J.:
This is an appeal from a decision * rendered by the
Special Criminal Court of Manila (Regional Trial
Court, Branch XLIX) convicting accused-appellant
of violation of Section 21 (b), Article IV in relation to
Section 4, Article 11 and Section 2 (e) (i), Article 1
of Republic Act 6425, as amended, otherwise
known as the Dangerous Drugs Act.
The facts as summarized in the brief of the
prosecution are as follows:
On August 14, 1987, between 10:00 and 11:00
a.m., the appellant and his common-law wife,
Shirley Reyes, went to the booth of the "Manila
Packing and Export Forwarders" in the Pistang
Pilipino Complex, Ermita, Manila, carrying with
them four (4) gift wrapped packages. Anita Reyes
(the proprietress and no relation to Shirley Reyes)
attended to them. The appellant informed Anita
Reyes that he was sending the packages to a
friend in Zurich, Switzerland. Appellant filled up the
CONSTI LAW II ACJUCO 11
contract necessary for the transaction, writing
therein his name, passport number, the date of
shipment and the name and address of the
consignee, namely, "WALTER FIERZ, Mattacketr
II, 8052 Zurich, Switzerland" (Decision, p. 6)
Anita Reyes then asked the appellant if she could
examine and inspect the packages. Appellant,
however, refused, assuring her that the packages
simply contained books, cigars, and gloves and
were gifts to his friend in Zurich. In view of
appellant's representation, Anita Reyes no longer
insisted on inspecting the packages. The four (4)
packages were then placed inside a brown
corrugated box one by two feet in size (1' x 2').
Styro-foam was placed at the bottom and on top of
the packages before the box was sealed with
masking tape, thus making the box ready for
shipment (Decision, p. 8).
Before delivery of appellant's box to the Bureau of
Customs and/or Bureau of Posts, Mr. Job Reyes
(proprietor) and husband of Anita (Reyes), following
standard operating procedure, opened the boxes
for final inspection. When he opened appellant's
box, a peculiar odor emitted therefrom. His
curiousity aroused, he squeezed one of the bundles
allegedly containing gloves and felt dried leaves
inside. Opening one of the bundles, he pulled out a
cellophane wrapper protruding from the opening of
one of the gloves. He made an opening on one of
the cellophane wrappers and took several grams of
the contents thereof (tsn, pp. 29-30, October 6,
1987; Emphasis supplied).
Job Reyes forthwith prepared a letter reporting the
shipment to the NBI and requesting a laboratory
examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).
He brought the letter and a sample of appellant's
shipment to the Narcotics Section of the National
Bureau of Investigation (NBI), at about 1:30 o'clock
in the afternoon of that date, i.e., August 14, 1987.
He was interviewed by the Chief of Narcotics
Section. Job Reyes informed the NBI that the rest
of the shipment was still in his office. Therefore,
Job Reyes and three (3) NBI agents, and a
photographer, went to the Reyes' office at Ermita,
Manila (tsn, p. 30, October 6, 1987).
Job Reyes brought out the box in which appellant's
packages were placed and, in the presence of the
NBI agents, opened the top flaps, removed the

styro-foam and took out the cellophane wrappers
from inside the gloves. Dried marijuana leaves
were found to have been contained inside the
cellophane wrappers (tsn, p. 38, October 6, 1987;
Emphasis supplied).
The package which allegedly contained books was
likewise opened by Job Reyes. He discovered that
the package contained bricks or cake-like dried
marijuana leaves. The package which allegedly
contained tabacalera cigars was also opened. It
turned out that dried marijuana leaves were neatly
stocked underneath the cigars (tsn, p. 39, October
6, 1987).
The NBI agents made an inventory and took charge
of the box and of the contents thereof, after signing
a "Receipt" acknowledging custody of the said
effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant
but to no avail. Appellant's stated address in his
passport being the Manila Central Post Office, the
agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while
claiming his mail at the Central Post Office, was
invited by the NBI to shed light on the attempted
shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the
dried leaves to the Forensic Chemistry Section for
laboratory examination. It turned out that the dried
leaves were marijuana flowering tops as certified by
the forensic chemist. (Appellee's Brief, pp. 9-11,
Rollo, pp. 132-134).
Thereafter, an Information was filed against
appellant for violation of RA 6425, otherwise known
as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed
decision.
In this appeal, accused/appellant assigns the
following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN
EVIDENCE THE ILLEGALLY SEARCHED AND
SEIZED OBJECTS CONTAINED IN THE FOUR
PARCELS.
THE LOWER COURT ERRED IN CONVICTING
APPELLANT DESPITE THE UNDISPUTED FACT
THAT HIS RIGHTS UNDER THE CONSTITUTION
CONSTI LAW II ACJUCO 12
WHILE UNDER CUSTODIAL PROCEEDINGS
WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING
CREDENCE TO THE EXPLANATION OF THE
APPELLANT ON HOW THE FOUR PARCELS
CAME INTO HIS POSSESSION (Appellant's Brief,
p. 1; Rollo, p. 55)
1. Appellant contends that the evidence
subject of the imputed offense had been obtained
in violation of his constitutional rights against
unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution)
and therefore argues that the same should be held
inadmissible in evidence (Sec. 3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution
provide:
Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any
purpose in any proceeding.
Our present constitutional provision on the
guarantee against unreasonable search and
seizure had its origin in the 1935 Charter which,
worded as follows:
The right of the people to be secure in their
persons, houses, papers and effects against
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be

searched, and the persons or things to be seized.
(Sec. 1 [3], Article III)
was in turn derived almost verbatim from the Fourth
Amendment ** to the United States Constitution. As
such, the Court may turn to the pronouncements of
the United States Federal Supreme Court and
State Appellate Courts which are considered
doctrinal in this jurisdiction.
Thus, following the exclusionary rule laid down in
Mapp v. Ohio by the US Federal Supreme Court
(367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]),
this Court, in Stonehill v. Diokno (20 SCRA 383
[1967]), declared as inadmissible any evidence
obtained by virtue of a defective search and seizure
warrant, abandoning in the process the ruling
earlier adopted in Moncado v. People's Court (80
Phil. 1 [1948]) wherein the admissibility of evidence
was not affected by the illegality of its seizure. The
1973 Charter (Sec. 4 [2], Art. IV) constitutionalized
the Stonehill ruling and is carried over up to the
present with the advent of the 1987 Constitution.
In a number of cases, the Court strictly adhered to
the exclusionary rule and has struck down the
admissibility of evidence obtained in violation of the
constitutional safeguard against unreasonable
searches and seizures. (Bache & Co., (Phil.), Inc.,
v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de
Leon, 66 SCRA 299 [1975]; People v. Burgos, 144
SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687
[1987]; See also Salazar v. Hon. Achacoso, et al.,
GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases
adverted to, the evidence so obtained were
invariably procured by the State acting through the
medium of its law enforcers or other authorized
government agencies.
On the other hand, the case at bar assumes a
peculiar character since the evidence sought to be
excluded was primarily discovered and obtained by
a private person, acting in a private capacity and
without the intervention and participation of State
authorities. Under the circumstances, can
accused/appellant validly claim that his
constitutional right against unreasonable searches
and seizure has been violated? Stated otherwise,
may an act of a private individual, allegedly in
violation of appellant's constitutional rights, be
invoked against the State?
CONSTI LAW II ACJUCO 13
We hold in the negative. In the absence of
governmental interference, the liberties guaranteed
by the Constitution cannot be invoked against the
State.
As this Court held in Villanueva v. Querubin (48
SCRA 345 [1972]:
1. This constitutional right (against
unreasonable search and seizure) refers to the
immunity of one's person, whether citizen or alien,
from interference by government, included in which
is his residence, his papers, and other possessions.
...
. . . There the state, however powerful, does not as
such have the access except under the
circumstances above noted, for in the traditional
formulation, his house, however humble, is his
castle. Thus is outlawed any unwarranted intrusion
by government, which is called upon to refrain from
any invasion of his dwelling and to respect the
privacies of his life. . . . (Cf. Schermerber v.
California, 384 US 757 [1966] and Boyd v. United
States, 116 US 616 [1886]; Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S
Ct. 547; 65 L.Ed. 1048), the Court there in
construing the right against unreasonable searches
and seizures declared that:
(t)he Fourth Amendment gives protection against
unlawful searches and seizures, and as shown in
previous cases, its protection applies to
governmental action. Its origin and history clearly
show that it was intended as a restraint upon the
activities of sovereign authority, and was not
intended to be a limitation upon other than
governmental agencies; as against such authority it
was the purpose of the Fourth Amendment to
secure the citizen in the right of unmolested
occupation of his dwelling and the possession of
his property, subject to the right of seizure by
process duly served.
The above ruling was reiterated in State v. Bryan
(457 P.2d 661 [1968]) where a parking attendant
who searched the automobile to ascertain the
owner thereof found marijuana instead, without the
knowledge and participation of police authorities,
was declared admissible in prosecution for illegal
possession of narcotics.

And again in the 1969 case of Walker v. State (429
S.W.2d 121), it was held that the search and
seizure clauses are restraints upon the government
and its agents, not upon private individuals (citing
People v. Potter, 240 Cal. App.2d 621, 49 Cap.
Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d
903 (1965); State v. Olsen, Or., 317 P.2d 938
(1957).
Likewise appropos is the case of Bernas v. US (373
F.2d 517 (1967). The Court there said:
The search of which appellant complains, however,
was made by a private citizen — the owner of a
motel in which appellant stayed overnight and in
which he left behind a travel case containing the
evidence*** complained of. The search was made
on the motel owner's own initiative. Because of it,
he became suspicious, called the local police,
informed them of the bag's contents, and made it
available to the authorities.
The fourth amendment and the case law applying it
do not require exclusion of evidence obtained
through a search by a private citizen. Rather, the
amendment only proscribes governmental action."
The contraband in the case at bar having come into
possession of the Government without the latter
transgressing appellant's rights against
unreasonable search and seizure, the Court sees
no cogent reason why the same should not be
admitted against him in the prosecution of the
offense charged.
Appellant, however, would like this court to believe
that NBI agents made an illegal search and seizure
of the evidence later on used in prosecuting the
case which resulted in his conviction.
The postulate advanced by accused/appellant
needs to be clarified in two days. In both instances,
the argument stands to fall on its own weight, or the
lack of it.
First, the factual considerations of the case at bar
readily foreclose the proposition that NBI agents
conducted an illegal search and seizure of the
prohibited merchandise. Records of the case
clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made
search/inspection of the packages. Said inspection
was reasonable and a standard operating
procedure on the part of Mr. Reyes as a
CONSTI LAW II ACJUCO 14
precautionary measure before delivery of packages
to the Bureau of Customs or the Bureau of Posts
(TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8;
Original Records, pp. 119-122; 167-168).
It will be recalled that after Reyes opened the box
containing the illicit cargo, he took samples of the
same to the NBI and later summoned the agents to
his place of business. Thereafter, he opened the
parcel containing the rest of the shipment and
entrusted the care and custody thereof to the NBI
agents. Clearly, the NBI agents made no search
and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.
Second, the mere presence of the NBI agents did
not convert the reasonable search effected by
Reyes into a warrantless search and seizure
proscribed by the Constitution. Merely to observe
and look at that which is in plain sight is not a
search. Having observed that which is open, where
no trespass has been committed in aid thereof, is
not search (Chadwick v. State, 429 SW2d 135).
Where the contraband articles are identified without
a trespass on the part of the arresting officer, there
is not the search that is prohibited by the
constitution (US v. Lee 274 US 559, 71 L.Ed. 1202
[1927]; Ker v. State of California 374 US 23, 10
L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d
122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it
was likewise held that where the property was
taken into custody of the police at the specific
request of the manager and where the search was
initially made by the owner there is no
unreasonable search and seizure within the
constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution
is not meant to be invoked against acts of private
individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land
must always be subject to protection. But protection
against whom? Commissioner Bernas in his
sponsorship speech in the Bill of Rights answers
the query which he himself posed, as follows:
First, the general reflections. The protection of
fundamental liberties in the essence of
constitutional democracy. Protection against
whom? Protection against the state. The Bill of
Rights governs the relationship between the

individual and the state. Its concern is not the
relation between individuals, between a private
individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in
the private sphere inaccessible to any power
holder. (Sponsorship Speech of Commissioner
Bernas , Record of the Constitutional Commission,
Vol. 1, p. 674; July 17, 1986; Emphasis supplied)
The constitutional proscription against unlawful
searches and seizures therefore applies as a
restraint directed only against the government and
its agencies tasked with the enforcement of the law.
Thus, it could only be invoked against the State to
whom the restraint against arbitrary and
unreasonable exercise of power is imposed.
If the search is made upon the request of law
enforcers, a warrant must generally be first secured
if it is to pass the test of constitutionality. However,
if the search is made at the behest or initiative of
the proprietor of a private establishment for its own
and private purposes, as in the case at bar, and
without the intervention of police authorities, the
right against unreasonable search and seizure
cannot be invoked for only the act of private
individual, not the law enforcers, is involved. In
sum, the protection against unreasonable searches
and seizures cannot be extended to acts committed
by private individuals so as to bring it within the
ambit of alleged unlawful intrusion by the
government.
Appellant argues, however, that since the
provisions of the 1935 Constitution has been
modified by the present phraseology found in the
1987 Charter, expressly declaring as inadmissible
any evidence obtained in violation of the
constitutional prohibition against illegal search and
seizure, it matters not whether the evidence was
procured by police authorities or private individuals
(Appellant's Brief, p. 8, Rollo, p. 62).
The argument is untenable. For one thing, the
constitution, in laying down the principles of the
government and fundamental liberties of the
people, does not govern relationships between
individuals. Moreover, it must be emphasized that
the modifications introduced in the 1987
Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of
arrest vis-a-vis the responsibility of the judge in the
issuance thereof (See Soliven v. Makasiar, 167
SCRA 393 [1988]; Circular No. 13 [October 1,
CONSTI LAW II ACJUCO 15
1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to
whom the restriction or inhibition against
unreasonable search and seizure is directed
against. The restraint stayed with the State and did
not shift to anyone else.
Corolarilly, alleged violations against unreasonable
search and seizure may only be invoked against
the State by an individual unjustly traduced by the
exercise of sovereign authority. To agree with
appellant that an act of a private individual in
violation of the Bill of Rights should also be
construed as an act of the State would result in
serious legal complications and an absurd
interpretation of the constitution.
Similarly, the admissibility of the evidence procured
by an individual effected through private seizure
equally applies, in pari passu, to the alleged
violation, non-governmental as it is, of appellant's
constitutional rights to privacy and communication.
2. In his second assignment of error, appellant
contends that the lower court erred in convicting
him despite the undisputed fact that his rights under
the constitution while under custodial investigation
were not observed.
Again, the contention is without merit, We have
carefully examined the records of the case and
found nothing to indicate, as an "undisputed fact",
that appellant was not informed of his constitutional
rights or that he gave statements without the
assistance of counsel. The law enforcers testified
that accused/appellant was informed of his
constitutional rights. It is presumed that they have
regularly performed their duties (See. 5(m), Rule
131) and their testimonies should be given full faith
and credence, there being no evidence to the
contrary. What is clear from the records, on the
other hand, is that appellant refused to give any
written statement while under investigation as
testified by Atty. Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job
Reyes. What about the accused here, did you
investigate the accused together with the girl?
WITNESS:

Yes, we have interviewed the accused together
with the girl but the accused availed of his
constitutional right not to give any written
statement, sir. (TSN, October 8, 1987, p. 62;
Original Records, p. 240)
The above testimony of the witness for the
prosecution was not contradicted by the defense on
cross-examination. As borne out by the records,
neither was there any proof by the defense that
appellant gave uncounselled confession while
being investigated. What is more, we have
examined the assailed judgment of the trial court
and nowhere is there any reference made to the
testimony of appellant while under custodial
investigation which was utilized in the finding of
conviction. Appellant's second assignment of error
is therefore misplaced.
3. Coming now to appellant's third assignment
of error, appellant would like us to believe that he
was not the owner of the packages which contained
prohibited drugs but rather a certain Michael, a
German national, whom appellant met in a pub
along Ermita, Manila: that in the course of their 30-
minute conversation, Michael requested him to ship
the packages and gave him P2,000.00 for the cost
of the shipment since the German national was
about to leave the country the next day (October
15, 1987, TSN, pp. 2-10).
Rather than give the appearance of veracity, we
find appellant's disclaimer as incredulous, self-
serving and contrary to human experience. It can
easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not
have pushed a man to entrust the shipment of four
(4) parcels and shell out P2,000.00 for the purpose
and for appellant to readily accede to comply with
the undertaking without first ascertaining its
contents. As stated by the trial court, "(a) person
would not simply entrust contraband and of
considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00
to a complete stranger like the Accused. The
Accused, on the other hand, would not simply
accept such undertaking to take custody of the
packages and ship the same from a complete
stranger on his mere say-so" (Decision, p. 19,
Rollo, p. 91). As to why he readily agreed to do the
errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence,
are negative self-serving evidence which deserve
no weight in law and cannot be given greater
CONSTI LAW II ACJUCO 16
evidentiary weight than the testimony of credible
witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People
vs. Sariol, 174 SCRA 237 [1989]).
Appellant's bare denial is even made more suspect
considering that, as per records of the Interpol, he
was previously convicted of possession of hashish
by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the
consignee of the frustrated shipment, Walter Fierz,
also a Swiss national, was likewise convicted for
drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN,
October 8, 1987, p. 66; Original Records, p. 244;
Decision, p. 21; Rollo, p. 93).
Evidence to be believed, must not only proceed
from the mouth of a credible witness, but it must be
credible in itself such as the common experience
and observation of mankind can approve as
probable under the circumstances (People v. Alto,
26 SCRA 342 [1968], citing Daggers v. Van Dyke,
37 N.J. Eg. 130; see also People v. Sarda, 172
SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castañares v. CA, 92 SCRA 567 [1979]).
As records further show, appellant did not even
bother to ask Michael's full name, his complete
address or passport number. Furthermore, if
indeed, the German national was the owner of the
merchandise, appellant should have so indicated in
the contract of shipment (Exh. "B", Original
Records, p. 40). On the contrary, appellant signed
the contract as the owner and shipper thereof
giving more weight to the presumption that things
which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule
131). At this point, appellant is therefore estopped
to claim otherwise.
Premises considered, we see no error committed
by the trial court in rendering the assailed
judgment.
WHEREFORE, the judgment of conviction finding
appellant guilty beyond reasonable doubt of the
crime charged is hereby AFFIRMED. No costs.
SO ORDERED.

G.R. No. 120915 April 3, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
ROSA ARUTA y MENGUIN, accused-appellant.
ROMERO, J.:
With the pervasive proliferation of illegal drugs and
its pernicious effects on our society, our law
enforcers tend at times to overreach themselves in
apprehending drug offenders to the extent of failing
to observe well-entrenched constitutional
guarantees against illegal searches and arrests.
Consequently, drug offenders manage to evade the
clutches of the law on mere technicalities.
Accused-appellant Rosa Aruta y Menguin was
arrested and charged with violating Section 4,
Article II of Republic Act No. 6425 or the
Dangerous Drugs Act. The information reads:
CONSTI LAW II ACJUCO 17
That on or about the fourteenth (14th) day of
December, 1988, in the City of Olongapo,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused,
without being lawfully authorized, did then and
there willfully, unlawfully and knowingly engage in
transporting approximately eight (8) kilos and five
hundred (500) grams of dried marijuana packed in
plastic bag marked "Cash Katutak" placed in a
traveling bag, which are prohibited drugs.
Upon arraignment, she pleaded "not guilty." After
trial on the merits, the Regional Trial Court of
Olongapo City convicted and sentenced her to
suffer the penalty of life imprisonment and to pay a
fine of twenty thousand (P20,000.00) pesos.1
The prosecution substantially relied on the
testimonies of P/Lt. Ernesto Abello, Officer-in-
Charge of the Narcotics Command (NARCOM) of
Olongapo City and P/Lt. Jose Domingo. Based on
their testimonies, the court a quo found the
following:
On December 13, 1988, P/Lt. Abello was tipped off
by his informant, known only as Benjie, that a
certain "Aling Rosa" would be arriving from Baguio
City the following day, December 14, 1988, with a
large volume of marijuana. Acting on said tip, P/Lt.
Abello assembled a team composed of P/Lt. Jose
Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial,
Sgt. Danilo Santiago and Sgt. Efren Quirubin.
Said team proceeded to West Bajac-Bajac,
Olongapo City at around 4:00 in the afternoon of
December 14, 1988 and deployed themselves near
the Philippine National Bank (PNB) building along
Rizal Avenue and the Caltex gasoline station.
Dividing themselves into two groups, one group,
made up of P/Lt. Abello, P/Lt. Domingo and the
informant posted themselves near the PNB building
while the other group waited near the Caltex
gasoline station.
While thus positioned, a Victory Liner Bus with
body number 474 and the letters BGO printed on its
front and back bumpers stopped in front of the PNB
building at around 6:30 in the evening of the same
day from where two females and a male got off. It
was at this stage that the informant pointed out to
the team "Aling Rosa" who was then carrying a
traveling bag.

Having ascertained that accused-appellant was
"Aling Rosa," the team approached her and
introduced themselves as NARCOM agents. When
P/Lt. Abello asked "Aling Rosa" about the contents
of her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain
dried marijuana leaves packed in a plastic bag
marked "Cash Katutak." The team confiscated the
bag together with the Victory Liner bus ticket to
which Lt. Domingo affixed his signature. Accused-
appellant was then brought to the NARCOM office
for investigation where a Receipt of Property
Seized was prepared for the confiscated marijuana
leaves.
Upon examination of the seized marijuana
specimen at the PC/INP Crime Laboratory, Camp
Olivas, Pampanga, P/Maj. Marlene Salangad, a
Forensic Chemist, prepared a Technical Report
stating that said specimen yielded positive results
for marijuana, a prohibited drug.
After the presentation of the testimonies of the
arresting officers and of the above technical report,
the prosecution rested its case.
Instead of presenting its evidence, the defense filed
a "Demurrer to Evidence" alleging the illegality of
the search and seizure of the items thereby
violating accused-appellant's constitutional right
against unreasonable search and seizure as well
as their inadmissibility in evidence.
The said "Demurrer to Evidence" was, however,
denied without the trial court ruling on the alleged
illegality of the search and seizure and the
inadmissibility in evidence of the items seized to
avoid pre-judgment. Instead, the trial court
continued to hear the case.
In view of said denial, accused-appellant testified
on her behalf. As expected, her version of the
incident differed from that of the prosecution. She
claimed that immediately prior to her arrest, she
had just come from Choice Theater where she
watched the movie "Balweg." While about to cross
the road, an old woman asked her help in carrying
a shoulder bag. In the middle of the road, Lt. Abello
and Lt. Domingo arrested her and asked her to go
with them to the NARCOM Office.
During investigation at said office, she disclaimed
any knowledge as to the identity of the woman and
CONSTI LAW II ACJUCO 18
averred that the old woman was nowhere to be
found after she was arrested. Moreover, she added
that no search warrant was shown to her by the
arresting officers.
After the prosecution made a formal offer of
evidence, the defense filed a "Comment and/or
Objection to Prosecution's Formal Offer of
Evidence" contesting the admissibility of the items
seized as they were allegedly a product of an
unreasonable search and seizure.
Not convinced with her version of the incident, the
Regional Trial Court of Olongapo City convicted
accused-appellant of transporting eight (8) kilos
and five hundred (500) grams of marijuana from
Baguio City to Olongapo City in violation of Section
4, Article 11 of R.A. No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of
1972 and sentenced her to life imprisonment and to
pay a fine of twenty thousand (P20,000.00) pesos
without subsidiary imprisonment in case of
insolvency.2
In this appeal, accused-appellant submits the
following:
1. The trial court erred in holding that the
NARCOM agents could not apply for a warrant for
the search of a bus or a passenger who boarded a
bus because one of the requirements for applying a
search warrant is that the place to be searched
must be specifically designated and described.
2. The trial court erred in holding or assuming
that if a search warrant was applied for by the
NARCOM agents, still no court would issue a
search warrant for the reason that the same would
be considered a general search warrant which may
be quashed.
3. The trial court erred in not finding that the
warrantless search resulting to the arrest of
accused-appellant violated the latter's constitutional
rights.
4. The trial court erred in not holding that
although the defense of denial is weak yet the
evidence of the prosecution is even weaker.
These submissions are impressed with merit.
In People v. Ramos,3 this Court held that a search
may be conducted by law enforcers only on the

strength of a search warrant validly issued by a
judge as provided in Article III, Section 2 of the
Constitution which provides:
Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
This constitutional guarantee is not a blanket
prohibition against all searches and seizures as it
operates only against "unreasonable" searches and
seizures. The plain import of the language of the
Constitution, which in one sentence prohibits
unreasonable searches and seizures and at the
same time prescribes the requisites for a valid
warrant, is that searches and seizures are normally
unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the
fundamental protection accorded by the search and
seizure clause is that between person and police
must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue
search warrants or warrants of arrest.4
Further, articles which are the product of
unreasonable searches and seizures are
inadmissible as evidence pursuant to the doctrine
pronounced in Stonehill v. Diokno.5 This
exclusionary rule was later enshrined in Article III,
Section 3(2) of the Constitution, thus:
Sec. 3(2). Any evidence obtained in violation of
this or the preceding section shall be inadmissible
in evidence for any purpose in any proceeding.
From the foregoing, it can be said that the State
cannot simply intrude indiscriminately into the
houses, papers, effects, and most importantly, on
the person of an individual. The constitutional
provision guaranteed an impenetrable shield
against unreasonable searches and seizures. As
such, it protects the privacy and sanctity of the
person himself against unlawful arrests and other
forms of restraint.6
CONSTI LAW II ACJUCO 19
Therewithal, the right of a person to be secured
against any unreasonable seizure of his body and
any deprivation of his liberty is a most basic and
fundamental one. A statute, rule or situation which
allows exceptions to the requirement of a warrant of
arrest or search warrant must perforce be strictly
construed and their application limited only to cases
specifically provided or allowed by law. To do
otherwise is an infringement upon personal liberty
and would set back a right so basic and deserving
of full protection and vindication yet often violated.7
The following cases are specifically provided or
allowed by law:
1. Warrantless search incidental to a lawful
arrest recognized under Section 12, Rule 126 of the
Rules of Court8 and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the
elements of which are:
(a) a prior valid intrusion based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered
by the police who had the right to be where they
are;
(c) the evidence must be immediately apparent,
and
(d) "plain view" justified mere seizure of
evidence without further search;
3. Search of a moving vehicle. Highly
regulated by the government, the vehicle's inherent
mobility reduces expectation of privacy especially
when its transit in public thoroughfares furnishes a
highly reasonable suspicion amounting to probable
cause that the occupant committed a criminal
activity;
4. Consented warrantless search;
5. Customs search;9
6. Stop and Frisk;10 and
7. Exigent and Emergency Circumstances.11
The above exceptions, however, should not
become unbridled licenses for law enforcement

officers to trample upon the constitutionally
guaranteed and more fundamental right of persons
against unreasonable search and seizures. The
essential requisite of probable cause must still be
satisfied before a warrantless search and seizure
can be lawfully conducted.
Although probable cause eludes exact and
concrete definition, it generally signifies a
reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to
warrant a cautious man to believe that the person
accused is guilty of the offense with which he is
charged. It likewise refers to the existence of such
facts and circumstances which could lead a
reasonably discreet and prudent man to believe
that an offense has been committed and that the
item(s), article(s) or object(s) sought in connection
with said offense or subject to seizure and
destruction by law is in the place to be searched.12
It ought to be emphasized that in determining
probable cause, the average man weighs facts and
circumstances without resorting to the calibrations
of our rules of evidence of which his knowledge is
technically nil. Rather, he relies on the calculus of
common sense which all reasonable men have in
abundance. The same quantum of evidence is
required in determining probable cause relative to
search. Before a search warrant can be issued, it
must be shown by substantial evidence that the
items sought are in fact seizable by virtue of being
connected with criminal activity, and that the items
will be found in the place to be searched.13
In searches and seizures effected without a
warrant, it is necessary for probable cause to be
present. Absent any probable cause, the article(s)
seized could not be admitted and used as evidence
against the person arrested. Probable cause, in
these cases, must only be based on reasonable
ground of suspicion or belief that a crime has been
committed or is about to be committed.
In our jurisprudence, there are instances where
information has become a sufficient probable cause
to effect a warrantless search and seizure.
In People v. Tangliben,14 acting on information
supplied by informers, police officers conducted a
surveillance at the Victory Liner Terminal
compound in San Fernando, Pampanga against
persons who may commit misdemeanors and also
on those who may be engaging in the traffic of
CONSTI LAW II ACJUCO 20
dangerous drugs. At 9:30 in the evening, the
policemen noticed a person carrying a red traveling
bag who was acting suspiciously. They confronted
him and requested him to open his bag but he
refused. He acceded later on when the policemen
identified themselves. Inside the bag were
marijuana leaves wrapped in a plastic wrapper. The
police officers only knew of the activities of
Tangliben on the night of his arrest.
In instant case, the apprehending officers already
had prior knowledge from their informant regarding
Aruta's alleged activities. In Tangliben policemen
were confronted with an on-the-spot tip. Moreover,
the policemen knew that the Victory Liner
compound is being used by drug traffickers as their
"business address". More significantly, Tangliben
was acting suspiciously. His actuations and
surrounding circumstances led the policemen to
reasonably suspect that Tangliben is committing a
crime. In instant case, there is no single indication
that Aruta was acting suspiciously.
In People v. Malmstedt,15 the Narcom agents
received reports that vehicles coming from Sagada
were transporting marijuana. They likewise
received information that a Caucasian coming from
Sagada had prohibited drugs on his person. There
was no reasonable time to obtain a search warrant,
especially since the identity of the suspect could
not be readily ascertained. His actuations also
aroused the suspicion of the officers conducting the
operation. The Court held that in light of such
circumstances, to deprive the agents of the ability
and facility to act promptly, including a search
without a warrant, would be to sanction impotence
and ineffectiveness in law enforcement, to the
detriment of society.
Note, however, the glaring differences of Malmstedt
to the instant case. In present case, the police
officers had reasonable time within which to secure
a search warrant. Second, Aruta's identity was
priorly ascertained. Third, Aruta was not acting
suspiciously. Fourth, Malmstedt was searched
aboard a moving vehicle, a legally accepted
exception to the warrant requirement. Aruta, on the
other hand, was searched while about to cross a
street.
In People v. Bagista,16 the NARCOM officers had
probable cause to stop and search all vehicles
coming from the north to Acop, Tublay, Benguet in
view of the confidential information they received

from their regular informant that a woman having
the same appearance as that of accused-appellant
would be bringing marijuana from up north. They
likewise had probable cause to search accused-
appellant's belongings since she fitted the
description given by the NARCOM informant. Since
there was a valid warrantless search by the
NARCOM agents, any evidence obtained in the
course of said search is admissible against
accused-appellant. Again, this case differs from
Aruta as this involves a search of a moving vehicle
plus the fact that the police officers erected a
checkpoint. Both are exceptions to the
requirements of a search warrant.
In Manalili v. Court of Appeals and People,17 the
policemen conducted a surveillance in an area of
the Kalookan Cemetery based on information that
drug addicts were roaming therein. Upon reaching
the place, they chanced upon a man in front of the
cemetery who appeared to be "high" on drugs. He
was observed to have reddish eyes and to be
walking in a swaying manner. Moreover, he
appeared to be trying to avoid the policemen. When
approached and asked what he was holding in his
hands, he tried to resist. When he showed his
wallet, it contained marijuana. The Court held that
the policemen had sufficient reason to accost
accused-appellant to determine if he was actually
"high" on drugs due to his suspicious actuations,
coupled with the fact that based on information, this
area was a haven for drug addicts.
In all the abovecited cases, there was information
received which became the bases for conducting
the warrantless search. Furthermore, additional
factors and circumstances were present which,
when taken together with the information,
constituted probable causes which justified the
warrantless searches and seizures in each of the
cases.
In the instant case, the determination of the
absence or existence of probable cause
necessitates a reexamination of the facts. The
following have been established: (1) In the morning
of December 13, 1988, the law enforcement
officers received information from an informant
named "Benjie" that a certain "Aling Rosa" would
be leaving for Baguio City on December 14, 1988
and would be back in the afternoon of the same
day carrying with her a large volume of marijuana;
(2) At 6:30 in the evening of December 14, 1988,
accused-appellant alighted from a Victory Liner Bus
CONSTI LAW II ACJUCO 21
carrying a traveling bag even as the informant
pointed her out to the law enforcement officers; (3)
The law enforcement officers approached her and
introduced themselves as NARCOM agents; (4)
When asked by Lt. Abello about the contents of her
traveling bag, she gave the same to him; (5) When
they opened the same, they found dried marijuana
leaves; (6) Accused-appellant was then brought to
the NARCOM office for investigation.
This case is similar to People v. Aminnudin where
the police received information two days before the
arrival of Aminnudin that the latter would be arriving
from Iloilo on board the M/V Wilcon 9. His name
was known, the vehicle was identified and the date
of arrival was certain. From the information they
had received, the police could have persuaded a
judge that there was probable cause, indeed, to
justify the issuance of a warrant. Instead of
securing a warrant first, they proceeded to
apprehend Aminnudin. When the case was brought
before this Court, the arrest was held to be illegal;
hence any item seized from Aminnudin could not
be used against him.
Another recent case is People v. Encinada where
the police likewise received confidential information
the day before at 4:00 in the afternoon from their
informant that Encinada would be bringing in
marijuana from Cebu City on board M/V Sweet
Pearl at 7:00 in the morning of the following day.
This intelligence information regarding the culprit's
identity, the particular crime he allegedly committed
and his exact whereabouts could have been a
basis of probable cause for the lawmen to secure a
warrant. This Court held that in accordance with
Administrative Circular No. 13 and Circular No. 19,
series of 1987, the lawmen could have applied for a
warrant even after court hours. The failure or
neglect to secure one cannot serve as an excuse
for violating Encinada's constitutional right.
In the instant case, the NARCOM agents were
admittedly not armed with a warrant of arrest. To
legitimize the warrantless search and seizure of
accused-appellant's bag, accused-appellant must
have been validly arrested under Section 5 of Rule
113 which provides inter alia:
Sec. 5. Arrest without warrant; when lawful. — A
peace officer or a private person may, without a
warrant, arrest a person:

(a) When in his presence, the person to be
arrested has committed, is actually committing, or
is attempting to commit an offense;
xxx xxx xxx
Accused-appellant Aruta cannot be said to be
committing a crime. Neither was she about to
commit one nor had she just committed a crime.
Accused-appellant was merely crossing the street
and was not acting in any manner that would
engender a reasonable ground for the NARCOM
agents to suspect and conclude that she was
committing a crime. It was only when the informant
pointed to accused-appellant and identified her to
the agents as the carrier of the marijuana that she
was singled out as the suspect. The NARCOM
agents would not have apprehended accused-
appellant were it not for the furtive finger of the
informant because, as clearly illustrated by the
evidence on record, there was no reason
whatsoever for them to suspect that accused-
appellant was committing a crime, except for the
pointing finger of the informant. This the Court
could neither sanction nor tolerate as it is a clear
violation of the constitutional guarantee against
unreasonable search and seizure. Neither was
there any semblance of any compliance with the
rigid requirements of probable cause and
warrantless arrests.
Consequently, there was no legal basis for the
NARCOM agents to effect a warrantless search of
accused-appellant's bag, there being no probable
cause and the accused-appellant not having been
lawfully arrested. Stated otherwise, the arrest being
incipiently illegal, it logically follows that the
subsequent search was similarly illegal, it being not
incidental to a lawful arrest. The constitutional
guarantee against unreasonable search and
seizure must perforce operate in favor of accused-
appellant. As such, the articles seized could not be
used as evidence against accused-appellant for
these are "fruits of a poisoned tree" and, therefore,
must be rejected, pursuant to Article III, Sec. 3(2) of
the Constitution.
Emphasis is to be laid on the fact that the law
requires that the search be incidental to a lawful
arrest, in order that the search itself may likewise
be considered legal. Therefore, it is beyond cavil
that a lawful arrest must precede the search of a
person and his belongings. Where a search is first
undertaken, and an arrest effected based on
CONSTI LAW II ACJUCO 22
evidence produced by the search, both such search
and arrest would be unlawful, for being contrary to
law.18
As previously discussed, the case in point is People
v. Aminnudin19 where, this Court observed that:
. . . accused-appellant was not, at the moment of
his arrest, committing a crime nor was it shown that
he was about to do so or that he had just done so.
What he was doing was descending the gangplank
of the M/V Wilcon 9 and there was no outward
indication that called for his arrest. To all
appearances, he was like any of the other
passengers innocently disembarking from the
vessel. It was only when the informer pointed to
him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension. It
was the furtive finger that triggered his arrest. The
identification by the informer was the probable
cause as determined by the officers (and not a
judge) that authorized them to pounce upon
Aminnudin and immediately arrest him.
In the absence of probable cause to effect a valid
and legal warrantless arrest, the search and
seizure of accused-appellant's bag would also not
be justified as seizure of evidence in "plain view"
under the second exception. The marijuana was
obviously not immediately apparent as shown by
the fact that the NARCOM agents still had to
request accused-appellant to open the bag to
ascertain its contents.
Neither would the search and seizure of accused-
appellant's bag be justified as a search of a moving
vehicle. There was no moving vehicle to speak of in
the instant case as accused-appellant was
apprehended several minutes after alighting from
the Victory Liner bus. In fact, she was accosted in
the middle of the street and not while inside the
vehicle.
People v. Solayao,20 applied the stop and frisk
principle which has been adopted in Posadas v.
Court of Appeals.21 In said case, Solayao
attempted to flee when he and his companions
were accosted by government agents. In the instant
case, there was no observable manifestation that
could have aroused the suspicion of the NARCOM
agents as to cause them to "stop and frisk"
accused-appellant. To reiterate, accused-appellant
was merely crossing the street when apprehended.
Unlike in the abovementioned cases, accused-

appellant never attempted to flee from the
NARCOM agents when the latter identified
themselves as such. Clearly, this is another
indication of the paucity of probable cause that
would sufficiently provoke a suspicion that
accused-appellant was committing a crime.
The warrantless search and seizure could not
likewise be categorized under exigent and
emergency circumstances, as applied in People v.
De
Gracia.22 In said case, there were intelligence
reports that the building was being used as
headquarters by the RAM during a coup d' etat. A
surveillance team was fired at by a group of armed
men coming out of the building and the occupants
of said building refused to open the door despite
repeated requests. There were large quantities of
explosives and ammunitions inside the building.
Nearby courts were closed and general chaos and
disorder prevailed. The existing circumstances
sufficiently showed that a crime was being
committed. In short, there was probable cause to
effect a warrantless search of the building. The
same could not be said in the instant case.
The only other exception that could possibly
legitimize the warrantless search and seizure would
be consent given by the accused-appellant to the
warrantless search as to amount to a waiver of her
constitutional right. The Solicitor General argues
that accused-appellant voluntarily submitted herself
to search and inspection citing People v.
Malasugui23 where this Court ruled:
When one voluntarily submits to a search or
consents to have it made on his person or
premises, he is precluded from complaining later
thereof. (Cooley, Constitutional Limitations, 8th ed.,
[V]ol. I, p. 631.) The right to be secure from
unreasonable search may, like every right, be
waived and such waiver may be made either
expressly or impliedly.
In support of said argument, the Solicitor General
cited the testimony of Lt. Abello, thus:
Q When this informant by the name of alias
Benjie pointed to Aling Rosa, what happened after
that?
A We followed her and introduced ourselves
as NARCOM agents and confronted her with our
CONSTI LAW II ACJUCO 23
informant and asked her what she was carrying and
if we can see the bag she was carrying.
Q What was her reaction?
A She gave her bag to me.
Q So what happened after she gave the bag
to you?
A I opened it and found out plastic bags of
marijuana inside.24
This Court cannot agree with the Solicitor General's
contention for the Malasugui case is inapplicable to
the instant case. In said case, there was probable
cause for the warrantless arrest thereby making the
warrantless search effected immediately thereafter
equally lawful.25 On the contrary, the most
essential element of probable cause, as expounded
above in detail, is wanting in the instant case
making the warrantless arrest unjustified and
illegal. Accordingly, the search which accompanied
the warrantless arrest was likewise unjustified and
illegal. Thus, all the articles seized from the
accused-appellant could not be used as evidence
against her.
Aside from the inapplicability of the abovecited
case, the act of herein accused-appellant in
handing over her bag to the NARCOM agents could
not be construed as voluntary submission or an
implied acquiescence to the unreasonable search.
The instant case is similar to People v. Encinada,26
where this Court held:
[T]he Republic's counsel avers that appellant
voluntarily handed the chairs containing the
package of marijuana to the arresting officer and
thus effectively waived his right against the
warrantless search. This he gleaned from Bolonia's
testimony.
Q: After Roel Encinada alighted from the motor
tricycle, what happened next?
A: I requested to him to see his chairs that he
carried.
Q: Are you referring to the two plastic chairs?
A: Yes, sir.

Q: By the way, when Roel Encinada agreed to
allow you to examine the two chairs that he carried,
what did you do next?
A: I examined the chairs and I noticed that
something inside in between the two chairs.
We are not convinced. While in principle we agree
that consent will validate an otherwise illegal
search, we believe that appellant — based on the
transcript quoted above — did not voluntarily
consent to Bolonia's search of his belongings.
Appellant's silence should not be lightly taken as
consent to such search. The implied acquiescence
to the search, if there was any, could not have been
more than mere passive conformity given under
intimidating or coercive circumstances and is thus
considered no consent at all within the purview of
the constitutional guarantee. Furthermore,
considering that the search was conducted
irregularly, i.e., without a warrant, we cannot
appreciate consent based merely on the
presumption of regularity of the performance of
duty." (Emphasis supplied)
Thus, accused-appellant's lack of objection to the
search is not tantamount to a waiver of her
constitutional rights or a voluntary submission to
the warrantless search. As this Court held in
People v. Barros:27
. . . [T]he accused is not to be presumed to have
waived the unlawful search conducted on the
occasion of his warrantless arrest "simply because
he failed to object" —
. . . To constitute a waiver, it must appear first that
the right exists; secondly, that the person involved
had knowledge, actual or constructive, of the
existence of such right; and lastly, that said person
had an actual intention to relinquish the right
(Pasion Vda. de Garcia v. Locsin, 65 Phil. 698).
The fact that the accused failed to object to the
entry into his house does not amount to a
permission to make a search therein (Magoncia v.
Palacio, 80 Phil. 770). As pointed out by Justice
Laurel in the case of Pasion Vda. de Garcia v.
Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent
upon any affirmative act of the citizen, the courts do
not place the citizen in the position of either
CONSTI LAW II ACJUCO 24
contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the
law. (Citation omitted).
We apply the rule that: "courts indulge every
reasonable presumption against waiver of
fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental
rights."28 (Emphasis supplied)
To repeat, to constitute a waiver, there should be
an actual intention to relinquish the right. As clearly
illustrated in People v. Omaweng,29 where
prosecution witness Joseph Layong testified thus:
PROSECUTOR AYOCHOK:
Q — When you and David Fomocod saw the
travelling bag, what did you do?
A — When we saw that traveling bag, we asked
the driver if we could see the contents.
Q — And what did or what was the reply of the
driver, if there was any?
A — He said "you can see the contents but those
are only clothings" (sic).
Q— When he said that, what did you do?
A— We asked him if we could open and see it.
Q— When you said that, what did he tell you?
A— He said "you can see it".
Q — And when he said "you can see and open
it," what did you do?
A — When I went inside and opened the bag, I
saw that it was not clothings (sic) that was
contained in the bag.
Q — And when you saw that it was not clothings
(sic), what did you do?
A — When I saw that the contents were not
clothes, I took some of the contents and showed it
to my companion Fomocod and when Fomocod

smelled it, he said it was marijuana. (Emphasis
supplied)
In the above-mentioned case, accused was not
subjected to any search which may be stigmatized
as a violation of his Constitutional right against
unreasonable searches and seizures. If one had
been made, this Court would be the first to
condemn it "as the protection of the citizen and the
maintenance of his constitutional rights is one of
the highest duties and privileges of the Court." He
willingly gave prior consent to the search and
voluntarily agreed to have it conducted on his
vehicle and traveling bag, which is not the case
with Aruta.
In an attempt to further justify the warrantless
search, the Solicitor General next argues that the
police officers would have encountered difficulty in
securing a search warrant as it could be secured
only if accused-appellant's name was known, the
vehicle identified and the date of its arrival certain,
as in the Aminnudin case where the arresting
officers had forty-eight hours within which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
. . . [N]o search warrant or warrant of arrest shall
issue except upon probable cause to be
determined by the judge, or such other responsible
officer as may be authorized by law, after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be searched
and the persons or things to be seized. (Emphasis
supplied)
Search warrants to be valid must particularly
describe the place to be searched and the persons
or things to be seized. The purpose of this rule is to
limit the things to be seized to those and only
those, particularly described in the warrant so as to
leave the officers of the law with no discretion
regarding what articles they shall seize to the end
that unreasonable searches and seizures may not
be made.30
Had the NARCOM agents only applied for a search
warrant, they could have secured one without too
much difficulty, contrary to the assertions of the
Solicitor General. The person intended to be
searched has been particularized and the thing to
CONSTI LAW II ACJUCO 25
be seized specified. The time was also sufficiently
ascertained to be in the afternoon of December 14,
1988. "Aling Rosa" turned out to be accused-
appellant and the thing to be seized was marijuana.
The vehicle was identified to be a Victory Liner bus.
In fact, the NARCOM agents purposely positioned
themselves near the spot where Victory Liner
buses normally unload their passengers. Assuming
that the NARCOM agents failed to particularize the
vehicle, this would not in any way hinder them from
securing a search warrant. The above particulars
would have already sufficed. In any case, this Court
has held that the police should particularly describe
the place to be searched and the person or things
to be seized, wherever and whenever it is
feasible.31 (Emphasis supplied)
While it may be argued that by entering a plea
during arraignment and by actively participating in
the trial, accused-appellant may be deemed to
have waived objections to the illegality of the
warrantless search and to the inadmissibility of the
evidence obtained thereby, the same may not apply
in the instant case for the following reasons:
1. The waiver would only apply to objections
pertaining to the illegality of the arrest as her plea
of "not guilty" and participation in the trial are
indications of her voluntary submission to the
court's jurisdiction.32 The plea and active
participation in the trial would not cure the illegality
of the search and transform the inadmissible
evidence into objects of proof. The waiver simply
does not extend this far.
2. Granting that evidence obtained through a
warrantless search becomes admissible upon
failure to object thereto during the trial of the case,
records show that accused-appellant filed a
Demurrer to Evidence and objected and opposed
the prosecution's Formal Offer of Evidence.
It is apropos to quote the case of People v.
Barros,33 which stated:
It might be supposed that the non-admissibility of
evidence secured through an invalid warrantless
arrest or a warrantless search and seizure may be
waived by an accused person. The a priori
argument is that the invalidity of an unjustified
warrantless arrest, or an arrest effected with a
defective warrant of arrest may be waived by
applying for and posting of bail for provisional
liberty, so as to estop an accused from questioning
 CONSTI LAW II ACJUCO 26

the legality or constitutionality of his detention or
the failure to accord him a preliminary investigation.
We do not believe, however, that waiver of the
latter necessarily constitutes, or carries with it,
waiver of the former — an argument that the
Solicitor General appears to be making impliedly.
Waiver of the non-admissibility of the "fruits" of an
invalid warrantless arrest and of a warrantless
search and seizure is not casually to be presumed,
if the constitutional right against unlawful searches
and seizures is to retain its vitality for the protection
of our people. In the case at bar, defense counsel
had expressly objected on constitutional grounds to
the admission of the carton box and the four (4)
kilos of marijuana when these were formally offered
in evidence by the prosecution. We consider that
appellant's objection to the admission of such
evidence was made clearly and seasonably and
that, under the circumstances, no intent to waive
his rights under the premises can be reasonably
inferred from his conduct before or during the trial.
(Emphasis supplied).
In fine, there was really no excuse for the
NARCOM agents not to procure a search warrant
considering that they had more than twenty-four
hours to do so. Obviously, this is again an instance
of seizure of the "fruit of the poisonous tree," hence
illegal and inadmissible subsequently in evidence.
enforced without transgressing the constitutional
rights of the citizens, for the enforcement of no
statute is of sufficient importance to justify
indifference to the basic principles of
government.36
Those who are supposed to enforce the law are not
justified in disregarding the rights of the individual in
the name of order. Order is too high a price to pay
for the loss of liberty. As Justice Holmes declared:
"I think it is less evil that some criminals escape
than that the government should play an ignoble
part." It is simply not allowed in free society to
violate a law to enforce another, especially if the
law violated is the Constitution itself.37
WHEREFORE, in view of the foregoing, the
decision of the Regional Trial Court, Branch 73,
Olongapo City, is hereby REVERSED and SET
ASIDE. For lack of evidence to establish her guilt
beyond reasonable doubt, accused-appellant
ROSA ARUTA Y MENGUIN is hereby ACQUITTED
and ordered RELEASED from confinement unless
she is being held for some other legal grounds. No
costs.
SO ORDERED.

The exclusion of such evidence is the only practical

means of enforcing the constitutional injunction
against unreasonable searches and seizure. The
non-exclusionary rule is contrary to the letter and
spirit of the prohibition against unreasonable
searches and seizures.34

While conceding that the officer making the

unlawful search and seizure may be held criminally
and civilly liable, the Stonehill case observed that
most jurisdictions have realized that the
exclusionary rule is "the only practical means of
enforcing the constitutional injunction" against
abuse. This approach is based on the justification
made by Judge Learned Hand that "only in case
the prosecution which itself controls the seizing
officials, knows that it cannot profit by their wrong,
will the wrong be repressed."35

Unreasonable searches and seizures are the

menace against which the constitutional
guarantees afford full protection. While the power to
search and seize may at times be necessary to the
public welfare, still it may be exercised and the law
 CONSTI LAW II ACJUCO 27

RICARDO C. VALMONTE AND UNION OF

LAWYERS AND ADVOCATES FOR PEOPLE'S
RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL
CAPITAL REGION DISTRICT COMMAND,
respondents.

Ricardo C. Valmonte for himself and his co-

petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary

injunction and/or temporary restraining order,
seeking the declaration of checkpoints in
Valenzuela, Metro Manila or elsewhere, as
unconstitutional and the dismantling and banning of
the same or, in the alternative, to direct the
respondents to formulate guidelines in the
implementation of checkpoints, for the protection of
the people.

Petitioner Ricardo C. Valmonte sues in his capacity

as citizen of the Republic, taxpayer, member of the
Integrated Bar of the Philippines (IBP), and resident
of Valenzuela, Metro Manila; while petitioner Union
of Lawyers and Advocates for People's Rights
(ULAP) sues in its capacity as an association
whose members are all members of the IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region

District Command (NCRDC) was activated
pursuant to Letter of Instruction 02/87 of the
Philippine General Headquarters, AFP, with the
mission of conducting security operations within its
area of responsibility and peripheral areas, for the
purpose of establishing an effective territorial
defense, maintaining peace and order, and
providing an atmosphere conducive to the social,
economic and political development of the National
Capital Region.1 As part of its duty to maintain
peace and order, the NCRDC installed checkpoints
in various parts of Valenzuela, Metro Manila.

Petitioners aver that, because of the installation of

said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being
placed at the arbitrary, capricious and whimsical
G.R. No. 83988 September 29, 1989 disposition of the military manning the checkpoints,

considering that their cars and vehicles are being
subjected to regular searches and check-ups,
especially at night or at dawn, without the benefit of
a search warrant and/or court order. Their alleged
fear for their safety increased when, at dawn of 9
July 1988, Benjamin Parpon, a supply officer of the
Municipality of Valenzuela, Bulacan, was gunned
down allegedly in cold blood by the members of the
NCRDC manning the checkpoint along McArthur
Highway at Malinta, Valenzuela, for ignoring and/or
refusing to submit himself to the checkpoint and for
continuing to speed off inspire of warning shots
fired in the air. Petitioner Valmonte also claims that,
on several occasions, he had gone thru these
checkpoints where he was stopped and his car
subjected to search/check-up without a court order
or search warrant.
Petitioners further contend that the said
checkpoints give the respondents a blanket
authority to make searches and/or seizures without
search warrant or court order in violation of the
Constitution; 2 and, instances have occurred where
a citizen, while not killed, had been harassed.
Petitioners' concern for their safety and
apprehension at being harassed by the military
manning the checkpoints are not sufficient grounds
to declare the checkpoints as per se illegal. No
proof has been presented before the Court to show
that, in the course of their routine checks, the
military indeed committed specific violations of
petitioners' right against unlawful search and
seizure or other rights.
In a case filed by the same petitioner organization,
Union of Lawyers and Advocates for People's Right
(ULAP) vs. Integrated National Police, 3 it was held
that individual petitioners who do not allege that
any of their rights were violated are not qualified to
bring the action, as real parties in interest.
The constitutional right against unreasonable
searches and seizures is a personal right invocable
only by those whose rights have been infringed, 4
or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in
any particular case is purely a judicial question,
determinable from a consideration of the
circumstances involved. 5
Petitioner Valmonte's general allegation to the
effect that he had been stopped and searched
without a search warrant by the military manning
CONSTI LAW II ACJUCO 28
the checkpoints, without more, i.e., without stating
the details of the incidents which amount to a
violation of his right against unlawful search and
seizure, is not sufficient to enable the Court to
determine whether there was a violation of
Valmonte's right against unlawful search and
seizure. Not all searches and seizures are
prohibited. Those which are reasonable are not
forbidden. A reasonable search is not to be
determined by any fixed formula but is to be
resolved according to the facts of each case. 6
Where, for example, the officer merely draws aside
the curtain of a vacant vehicle which is parked on
the public fair grounds, 7 or simply looks into a
vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.
The setting up of the questioned checkpoints in
Valenzuela (and probably in other areas) may be
considered as a security measure to enable the
NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace
and order for the benefit of the public. Checkpoints
may also be regarded as measures to thwart plots
to destabilize the government, in the interest of
public security. In this connection, the Court may
take judicial notice of the shift to urban centers and
their suburbs of the insurgency movement, so
clearly reflected in the increased killings in cities of
police and military men by NPA "sparrow units," not
to mention the abundance of unlicensed firearms
and the alarming rise in lawlessness and violence
in such urban centers, not all of which are reported
in media, most likely brought about by deteriorating
economic conditions — which all sum up to what
one can rightly consider, at the very least, as
abnormal times. Between the inherent right of the
state to protect its existence and promote public
welfare and an individual's right against a
warrantless search which is however reasonably
conducted, the former should prevail.
True, the manning of checkpoints by the military is
susceptible of abuse by the men in uniform, in the
same manner that all governmental power is
susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are
part of the price we pay for an orderly society and a
peaceful community.
 CONSTI LAW II ACJUCO 29

Finally, on 17 July 1988, military and police G.R. No. 104961 October 7, 1994
checkpoints in Metro Manila were temporarily lifted
and a review and refinement of the rules in the CONGRESSMAN FRANCISCO B. ANIAG, JR.,
conduct of the police and military manning the petitioner,
checkpoints was ordered by the National Capital vs.
Regional Command Chief and the Metropolitan COMMISSION ON ELECTIONS and
Police Director. 10 DEPARTMENT OF JUSTICE SPECIAL TASK
FORCE, respondents.
WHEREFORE, the petition is DISMISSED.
Ronolfo S. Pasamba for petitioner.
SO ORDERED.

BELLOSILLO, JR., J.:

PETITIONER assails in this petition (for declaratory

relief, certiorari and prohibition) the following
resolutions of the Commission on Elections:
Resolution No. 2327 dated 26 December 1991 for
being unconstitutional, and Resolution No. 92-0829
dated 6 April 1992 and Resolution No. 92-0999
dated 23 April 1992, for want of legal and factual
bases.

The factual backdrop: In preparation for the

synchronized national and local elections
scheduled on 11 May 1992, the Commission on
Elections (COMELEC) issued on 11 December
1991 Resolution No. 2323 otherwise referred to as
the "Gun Ban," promulgating rules and regulations
on bearing, carrying and transporting of firearms or
other deadly weapons, on security personnel or
bodyguards, on bearing arms by members of
security agencies or police organizations, and
organization or maintenance of reaction forces
during the election period.1 Subsequently, on 26
December 1991 COMELEC issued Resolution No.
2327 providing for the summary disqualification of
candidates engaged in gunrunning, using and
transporting of firearms, organizing special strike
forces, and establishing spot checkpoints.2

On 10 January 1992, pursuant to the "Gun Ban,"

Mr. Serapio P. Taccad, Sergeant-at-Arms, House
of Representatives, wrote petitioner who was then
Congressman of the 1st District of Bulacan
requesting the return of the two (2) firearms3
issued to him by the House of Representatives.
Upon being advised of the request on 13 January
1992 by his staff, petitioner immediately instructed
his driver, Ernesto Arellano, to pick up the firearms
from petitioner's house at Valle Verde and return
them to Congress.

Meanwhile, at about five o'clock in the afternoon of
the same day, the Philippine National Police (PNP)
headed by Senior Superintendent Danilo Cordero
set up a checkpoint outside the Batasan Complex
some twenty (20) meters away from its entrance.
About thirty minutes later, the policemen manning
the outpost flagged down the car driven by Arellano
as it approached the checkpoint. They searched
the car and found the firearms neatly packed in
their gun cases and placed in a bag in the trunk of
the car. Arellano was then apprehended and
detained. He explained that he was ordered by
petitioner to get the firearms from the house and
return them to Sergeant-at-Arms Taccad of the
House of Representatives.
Thereafter, the police referred Arellano's case to
the Office of the City Prosecutor for inquest. The
referral did not include petitioner as among those
charged with an election offense. On 15 January
1992, the City Prosecutor ordered the release of
Arellano after finding the latter's sworn explanation
meritorious.4
On 28 January 1992, the City Prosecutor invited
petitioner to shed light on the circumstances
mentioned in Arellano's sworn explanation.
Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but
also wrote the City Prosecutor urging him to
exonerate Arellano. He explained that Arellano did
not violate the firearms ban as he in fact was
complying with it when apprehended by returning
the firearms to Congress; and, that he was
petitioner's driver, not a security officer nor a
bodyguard.5
On 6 March 1992, the Office of the City Prosecutor
issued a resolution which, among other matters,
recommended that the case against Arellano be
dismissed and that the "unofficial" charge against
petitioner be also dismissed.6
Nevertheless, on 6 April 1992, upon
recommendation of its Law Department,
COMELEC issued Resolution No. 92-0829
directing the filing of information against petitioner
and Arellano for violation of Sec. 261, par. (q), of
B.P. Blg. 881 otherwise known as the Omnibus
Election Code, in relation to Sec. 32 of R.A. No.
7166;7 and petitioner to show cause why he should
not be disqualified from running for an elective
position, pursuant to COMELEC Resolution No.
CONSTI LAW II ACJUCO 30
2327, in relation to Sec. 32, 33 and 35 of R.A.
7166, and
Sec. 52, par. (c), of B.P. Blg. 881.8
On 13 April 1992, petitioner moved for
reconsideration and to hold in abeyance the
administrative proceedings as well as the filing of
the information in court.9 On 23 April 1992, the
COMELEC denied petitioner's motion for
reconsideration.10 Hence, this recourse.
Petitioner questions the constitutionality of
Resolution No. 2327. He argues that the rules and
regulations of an administrative body must respect
the limits defined by law; that the Omnibus Election
Code provides for the disqualification of any
person/candidate from running for or holding a
public office, i.e., any person who has either been
declared by competent authority as insane or
incompetent or has been sentenced by final
judgment for subversion, insurrection, rebellion or
for any offense for which he has been sentenced to
a penalty of more than eighteen months or for a
crime involving moral turpitude; that gunrunning,
using or transporting firearms or similar weapons
and other acts mentioned in the resolution are not
within the letter or spirit of the provisions of the
Code; that the resolution did away with the
requirement of final conviction before the
commission of certain offenses; that instead, it
created a presumption of guilt as a candidate may
be disqualified from office in situations (a) where
the criminal charge is still pending, (b) where there
is no pending criminal case, and (c) where the
accused has already been acquitted, all contrary to
the requisite quantum of proof for one to be
disqualified from running or holding public office
under the Omnibus Election Code, i.e., proof
beyond reasonable doubt. As a result, petitioner
concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.
But, the issue on the disqualification of petitioner
from running in the
11 May 1992 synchronized elections was rendered
moot when he lost his bid for a seat in Congress in
the elections that ensued. Consequently, it is now
futile to discuss the implications of the charge
against him on his qualification to run for public
office.
However, there still remains an important question
to be resolved, i.e., whether he can be validly
prosecuted for instructing his driver to return to the

Sergeant-at-Arms of the House of Representatives
the two firearms issued to him on the basis of the
evidence gathered from the warrantless search of
his car.
Petitioner strongly protests against the manner by
which the PNP conducted the search. According to
him, without a warrant and without informing the
driver of his fundamental rights the policemen
searched his car. The firearms were not tucked in
the waist nor within the immediate reach of Arellano
but were neatly packed in their gun cases and
wrapped in a bag kept in the trunk of the car. Thus,
the search of his car that yielded the evidence for
the prosecution was clearly violative of Secs. 2 and
3, par. (2), Art. III, of the Constitution. 11
Petitioner further maintains that he was neither
impleaded as party respondent in the preliminary
investigation before the Office of the City
Prosecutor nor included in the charge sheet.
Consequently, making him a respondent in the
criminal information would violate his constitutional
right to due process.
Petitioner disputes the charge that he violated Sec.
33 of R.A. 7166, which prohibits any candidate for
public office during the election period from
employing or availing himself or engaging the
services of security personnel or bodyguards since,
admittedly, Arellano was not a security officer or
bodyguard but a civilian employee assigned to him
as driver by the House of Representatives.
Specifically, petitioner further argues, Arellano was
instructed to return to Congress, as he did, the
firearms in compliance with the directive of its
Sergeant-at-Arms pursuant to the "Gun Ban," thus,
no law was in fact violated. 12
On 25 June 1992, we required COMELEC to file its
own comment on the
petition13 upon manifestation of the Solicitor
General that it could not take the position of
COMELEC and prayed instead to be excused from
filing the required comment. 14
COMELEC claims that petitioner is charged with
violation of Sec. 261, par. (q), in relation to Sec.
263, of B.P. Blg. 881 which provides that "the
principals, accomplices and accessories, as
defined in the Revised Penal Code, shall be
criminally liable for election offenses." It points out
that it was upon petitioner's instruction that Arellano
brought the firearms in question outside petitioner's
CONSTI LAW II ACJUCO 31
residence, submitting that his right to be heard was
not violated as he was invited by the City
Prosecutor to explain the circumstances regarding
Arellano's possession of the firearms. Petitioner
also filed a sworn written explanation about the
incident. Finally, COMELEC claims that violation of
the "Gun Ban" is mala prohibita, hence, the
intention of the offender is immaterial. 15
Be that as it may, we find no need to delve into the
alleged constitutional infirmity of Resolution No.
2327 since this petition may be resolved without
passing upon this particular issue. 16
As a rule, a valid search must be authorized by a
search warrant duly issued by an appropriate
authority. However, this is not absolute. Aside from
a search incident to a lawful arrest, a warrantless
search had been upheld in cases of moving
vehicles and the seizure of evidence in plain
view,17 as well as the search conducted at police
or military checkpoints which we declared are not
illegal per se, and stressed that the warrantless
search is not violative of the Constitution for as long
as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of
the vehicle is merely limited to a visual search. 18
Petitioner contends that the guns were not tucked
in Arellano's waist nor placed within his reach, and
that they were neatly packed in gun cases and
placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim.
The records do not show that the manner by which
the package was bundled led the PNP to suspect
that it contained firearms. There was no mention
either of any report regarding any nervous,
suspicious or unnatural reaction from Arellano
when the car was stopped and searched. Given
these circumstances and relying on its visual
observation, the PNP could not thoroughly search
the car lawfully as well as the package without
violating the constitutional injunction.
An extensive search without warrant could only be
resorted to if the officers conducting the search had
reasonable or probable cause to believe before the
search that either the motorist was a law offender
or that they would find the instrumentality or
evidence pertaining to the commission of a crime in
the vehicle to be searched.19 The existence of
probable cause justifying the warrantless search is
determined by the facts of each case.20 Thus, we
upheld the validity of the warrantless search in

situations where the smell of marijuana emanated
from a plastic bag owned by the accused, or where
the accused was acting suspiciously, and
attempted to flee. 21
We also recognize the stop-and-search without
warrant conducted by police officers on the basis of
prior confidential information which were
reasonably corroborated by other attendant
matters, e.g., where a confidential report that a
sizeable volume of marijuana would be transported
along the route where the search was conducted
and appellants were caught in flagrante delicto
transporting drugs at the time of their arrest; 22
where apart from the intelligence information, there
were reports by an undercover "deep penetration"
agent that appellants were bringing prohibited
drugs into the country; 23 where the information
that a Caucasian coming from Sagada bringing
prohibited drugs was strengthened by the
conspicuous bulge in accused's waistline, and his
suspicious failure to produce his passport and other
identification papers;24 where the physical
appearance of the accused fitted the description
given in the confidential information about a woman
transporting marijuana;25 where the accused
carrying a bulging black leather bag were
suspiciously quiet and nervous when queried about
its contents;26 or where the identity of the drug
courier was already established by police
authorities who received confidential information
about the probable arrival of accused on board one
of the vessels arriving in Dumaguete City. 27
In the case at bench, we find that the checkpoint
was set up twenty (20) meters from the entrance to
the Batasan Complex to enforce Resolution
No. 2327. There was no evidence to show that the
policemen were impelled to do so because of a
confidential report leading them to reasonably
believe that certain motorists matching the
description furnished by their informant were
engaged in gunrunning, transporting firearms or in
organizing special strike forces. Nor, as adverted to
earlier, was there any indication from the package
or behavior of Arellano that could have triggered
the suspicion of the policemen. Absent such
justifying circumstances specifically pointing to the
culpability of petitioner and Arellano, the search
could not be valid. The action then of the policemen
unreasonably intruded into petitioner's privacy and
the security of his property, in violation of Sec. 2,
Art. III, of the Constitution. Consequently, the
firearms obtained in violation of petitioner's right
CONSTI LAW II ACJUCO 32
against warrantless search cannot be admitted for
any purpose in any proceeding.
It may be argued that the seeming acquiescence of
Arellano to the search constitutes an implied waiver
of petitioner's right to question the reasonableness
of the search of the vehicle and the seizure of the
firearms.
While Resolution No. 2327 authorized the setting
up of checkpoints, it however stressed that
"guidelines shall be made to ensure that no
infringement of civil and political rights results from
the implementation of this authority," and that "the
places and manner of setting up of checkpoints
shall be determined in consultation with the
Committee on Firearms Ban and Security
Personnel created under Sec. 5, Resolution No.
2323."28 The facts show that PNP installed the
checkpoint at about five o'clock in the afternoon of
13 January 1992. The search was made soon
thereafter, or thirty minutes later. It was not shown
that news of impending checkpoints without
necessarily giving their locations, and the reason
for the same have been announced in the media to
forewarn the citizens. Nor did the informal
checkpoint that afternoon carry signs informing the
public of the purpose of its operation. As a result,
motorists passing that place did not have any
inkling whatsoever about the reason behind the
instant exercise. With the authorities in control to
stop and search passing vehicles, the motorists did
not have any choice but to submit to the PNP's
scrutiny. Otherwise, any attempt to turnabout albeit
innocent would raise suspicion and provide
probable cause for the police to arrest the motorist
and to conduct an extensive search of his vehicle.
In the case of petitioner, only his driver was at the
car at that time it was stopped for inspection. As
conceded by COMELEC, driver Arellano did not
know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the
operation,29 driver Arellano being alone and a
mere employee of petitioner could not have
marshalled the strength and the courage to protest
against the extensive search conducted in the
vehicle. In such scenario, the "implied
acquiescence," if there was any, could not be more
than a mere passive conformity on Arellano's part
to the search, and "consent" given under
intimidating or coercive circumstances is no
consent within the purview of the constitutional
guaranty.

Moreover, the manner by which COMELEC
proceeded against petitioner runs counter to the
due process clause of the Constitution. The facts
show that petitioner was not among those charged
by the PNP with violation of the Omnibus Election
Code. Nor was he subjected by the City Prosecutor
to a preliminary investigation for such offense. The
non-disclosure by the City Prosecutor to the
petitioner that he was a respondent in the
preliminary investigation is violative of due process
which requires that the procedure established by
law should be obeyed. 30
COMELEC argues that petitioner was given the
change to be heard because he was invited to
enlighten the City Prosecutor regarding the
circumstances leading to the arrest of his driver,
and that petitioner in fact submitted a sworn letter
of explanation regarding the incident. This does not
satisfy the requirement of due process the essence
of which is the reasonable opportunity to be heard
and to submit any evidence one may have in
support of his defense.31 Due process guarantees
the observance of both substantive and procedural
rights, whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court.
32 In Go v. Court of Appeals,33 we held
that —
While the right to preliminary investigation is
statutory rather than constitutional in its fundament,
since it has in fact been established by statute, it is
a component part of due process in criminal justice.
The right to have a preliminary investigation
conducted before being bound over to trial for a
criminal offense and hence formally at risk of
incarceration or some other penalty is not a mere
formal or technical right; it is a substantive
right . . . . [T]he right to an opportunity to avoid a
process painful to anyone save, perhaps, to
hardened criminals is a valuable right. To deny
petitioner's claim to a preliminary investigation
would be to deprive him of the full measure of his
right to due process.
Apparently, petitioner was merely invited during the
preliminary investigation of Arellano to corroborate
the latter's explanation. Petitioner then was made
to believe that he was not a party respondent in the
case, so that his written explanation on the incident
was only intended to exculpate Arellano, not
petitioner himself. Hence, it cannot be seriously
contended that petitioner was fully given the
CONSTI LAW II ACJUCO 33
opportunity to meet the accusation against him as
he was not apprised that he was himself a
respondent when he appeared before the City
Prosecutor.
Finally, it must be pointed out too that petitioner's
filing of a motion for reconsideration with
COMELEC cannot be considered as a waiver of his
claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's
vigorous insistence on his right. Petitioner's
protestation started as soon as he learned of his
inclusion in the charge, and did not ease up even
after COMELEC's denial of his motion for
reconsideration. This is understandably so since
the prohibition against carrying firearms bears the
penalty of imprisonment of not less than one (1)
year nor more than six (6) years without probation
and with disqualification from holding public office,
and deprivation of the right to suffrage. Against
such strong stance, petitioner clearly did not waive
his right to a preliminary investigation.
WHEREFORE, the instant petition is GRANTED.
The warrantless search conducted by the Philippine
National Police on 13 January 1992 is declared
illegal and the firearms seized during the
warrantless search cannot be used as evidence in
any proceeding against petitioner. Consequently,
COMELEC Resolution No. 92-0829 dated 6 April
1992 being violative of the Constitution is SET
ASIDE.
The temporary restraining order we issued on 5
May 1992 is made permanent.
SO ORDERED.
 CONSTI LAW II ACJUCO 34

G.R. No. 136292 January 15, 2002

RUDY CABALLES y TAIÑO, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

PUNO, J.:

This is an appeal by certiorari from the decision1 of

respondent Court of Appeals dated September 15,
1998 which affirmed the judgment rendered by the
Regional Trial Court of Santa Cruz, Laguna, finding
herein petitioner, Rudy Caballes y Taiño, guilty
beyond reasonable doubt of the crime of theft, and
the resolution2 dated November 9, 1998 which
denied petitioner's motion for reconsideration.

In an Information3 dated October 16, 1989,

petitioner was charged with the crime of theft
committed as follows:

"That on or about the 28th day of June, 1989, in the

Municipality of Pagsanjan, and/or elsewhere in the
Province of Laguna, and within the jurisdiction of
this Honorable Court, the above-named accused,
with intent of gain, and without the knowledge and
consent of the owner thereof, the NATIONAL
POWER CORPORATION, did then and there
wilfully, unlawfully and feloniously take, steal and
carry away about 630-kg of Aluminum Cable
Conductors, valued at P27, 450.00, belonging to
and to the damage and prejudice of said owner
National Power Corp., in the aforesaid amount.

CONTRARY TO LAW."

During the arraignment, petitioner pleaded not

guilty and hence, trial on the merits ensued.

The facts are summarized by the appellate court as

follows:

"[At] about 9:15 p.m. of June 28, 1989, Sgt.

Victorino Noceja and Pat. Alex de Castro, while on

a routine patrol in Barangay Sampalucan,
Pagsanjan, Laguna, spotted a passenger jeep
unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled
goods, the two police officers flagged down the
vehicle. The jeep was driven by appellant. When
asked what was loaded on the jeep, he did not
answer; he appeared pale and nervous.
With appellant's consent, the police officers
checked the cargo and they discovered bundles of
3.08 mm aluminum/galvanized conductor wires
exclusively owned by National Power Corporation
(NPC). The conductor wires weighed 700 kilos and
valued at P55, 244.45. Noceja asked appellant
where the wires came from and appellant answered
that they came from Cavinti, a town approximately
8 kilometers away from Sampalucan. Thereafter,
appellant and the vehicle with the high-voltage
wires were brought to the Pagsanjan Police Station.
Danilo Cabale took pictures of the appellant and
the jeep loaded with the wires which were turned
over to the Police Station Commander of
Pagsanjan, Laguna. Appellant was incarcerated for
7 days in the Municipal jail.
In defense, appellant interposed denial and alibi.
He testified that he is a driver and resident of
Pagsanjan, Laguna; a NARCOM civilian agent
since January, 1988 although his identification card
(ID) has already expired. In the afternoon of June
28, 1989, while he was driving a passenger
jeepney, he was stopped by one Resty Fernandez
who requested him to transport in his jeepney
conductor wires which were in Cavinti, Laguna. He
told Resty to wait until he had finished his last trip
for the day from Santa Cruz, Laguna. On his way to
Santa Cruz, Laguna, he dropped by the NARCOM
headquarters and informed his superior, Sgt.
Callos, that something unlawful was going to
happen. Sgt. Callos advised him to proceed with
the loading of the wires and that the former would
act as back-up and intercept the vehicle at the
Sambat Patrol Base in Pagsanjan.
After receiving those instructions, he went back to
see Resty. Although Resty had his own vehicle, its
tires were old so the cable wires were loaded in
appellant's jeep and covered with kakawati leaves.
The loading was done by about five (5) masked
men. He was promised ₱1,000.00 for the job. Upon
crossing a bridge, the two vehicles separated but in
his case, he was intercepted by Sgt. Noceja and
CONSTI LAW II ACJUCO 35
Pat. De Castro. When they discovered the cables,
he told the police officers that the cables were
loaded in his jeep by the owner, Resty Fernandez.
But despite his explanation, he was ordered to
proceed to police headquarters where he was
interrogated. The police officers did not believe him
and instead locked him up in jail for a week."4
On April 27, 1993, the court a quo rendered
judgment5 the dispositive portion of which reads:
"WHEREFORE, finding the accused guilty beyond
reasonable doubt of the crime of Theft of property
worth ₱55,244.45, the Court hereby sentences him
to suffer imprisonment from TWO (2) [YEARS],
FOUR (4) MONTHS, and ONE (1) DAY of Prision
Correccional, as minimum, to TEN (10) YEARS of
Prision Mayor, as maximum, to indemnify the
complainant National Power Corporation in the
amount of ₱55, 244.45, and to pay the costs."
On appeal, the Court of Appeals affirmed the
judgment of conviction but deleted the award for
damages on the ground that the stolen materials
were recovered and modified the penalty imposed,
to wit:
"WHEREFORE, the appealed decision is hereby
AFFIRMED with the modification that appellant
RUDY CABALLES is found guilty beyond
reasonable doubt as principal in theft, defined and
penalized under Articles 308 and 309, par. 1,
Revised Penal Code, and there being no modifying
circumstances, he is hereby meted an
indeterminate penalty of Four (4) years, Nine (9)
months and Eleven (11) days of prision
correccional, as minimum term, to Eight (8) years,
Eight (8) months and one (1) day of prision mayor,
as maximum term. No civil indemnity and no
costs."6
Petitioner comes before us and raises the following
issues:
"(a) Whether or not the constitutional right of
petitioner was violated when the police officers
searched his vehicle and seized the wires found
therein without a search warrant and when samples
of the wires and references to them were admitted
in evidence as basis for his conviction;
(b) Whether or not respondent Court erred in
rejecting petitioner's defense that he was engaged
in an entrapment operation and in indulging in

speculation and conjecture in rejecting said
defense; and
(c) Whether or not the evidence of the prosecution
failed to establish the guilt of petitioner beyond
reasonable doubt and thus failed to overcome the
constitutional right of petitioner to presumption of
innocence."
The conviction or acquittal of petitioner hinges
primarily on the validity of the warrantless search
and seizure made by the police officers, and the
admissibility of the evidence obtained by virtue
thereof.
In holding that the warrantless search and seizure
is valid, the trial court ruled that:
"As his last straw of argument, the accused
questions the constitutionality of the search and
validity of his arrest on the ground that no warrant
was issued to that effect. The Court cannot again
sustain such view. In the case of People v. Lo Ho
[Wing], G.R. No. 88017, January 21, 1991, it has
been held that 'considering that before a warrant
can be obtained, the place, things and persons to
be searched must be described to the satisfaction
of the issuing judge - a requirement which borders
on the impossible in the case of smuggling effected
by the use of a moving vehicle that can transport
contraband from one place to another with
impunity, a warrantless search of a moving vehicle
is justified on grounds of practicability.' The doctrine
is not of recent vintage. In the case of Valmonte vs.
de Villa, G.R. No. 83988, May 24, 1990 (Resolution
on Motion for Reconsideration, September 29,
1989), it was ruled that 'automobiles because of
their mobility may be searched without a warrant
upon facts not justifying warrantless search of a
resident or office. x x x To hold that no criminal can,
in any case, be arrested and searched for the
evidence and tokens of his crime without a warrant,
would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the
most depraved of criminals, facilitating their escape
in many instances' (Ibid.). In Umil v. Ramos, 187
SCRA 311, and People vs. Ortiz, 191 SCRA 836,
the Supreme Court held that a search may be
made even without a warrant where the accused is
caught in flagrante. Under the circumstances, the
police officers are not only authorized but are also
under obligation to arrest the accused even without
a warrant."7
CONSTI LAW II ACJUCO 36
Petitioner contends that the flagging down of his
vehicle by police officers who were on routine
patrol, merely on "suspicion" that "it might contain
smuggled goods," does not constitute probable
cause that will justify a warrantless search and
seizure. He insists that, contrary to the findings of
the trial court as adopted by the appellate court, he
did not give any consent, express or implied, to the
search of the vehicle. Perforce, any evidence
obtained in violation of his right against
unreasonable search and seizure shall be deemed
inadmissible.
Enshrined in our Constitution is the inviolable right
of the people to be secure in their persons and
properties against unreasonable searches and
seizures, as defined under Section 2, Article III
thereof, which reads:
"Sec. 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized."
The exclusionary rule under Section 3(2), Article III
of the Constitution bars the admission of evidence
obtained in violation of such right.
The constitutional proscription against warrantless
searches and seizures is not absolute but admits of
certain exceptions, namely: (1) warrantless search
incidental to a lawful arrest recognized under
Section 12, Rule 126 of the Rules of Court and by
prevailing jurisprudence;8 (2) seizure of evidence in
plain view;9 (3) search of moving vehicles;10 (4)
consented warrantless search;11 (5) customs
search; (6) stop and frisk situations (Terry
search);12 and (7) exigent and emergency
circumstances.13
In cases where warrant is necessary, the steps
prescribed by the Constitution and reiterated in the
Rules of Court must be complied with. In the
exceptional events where warrant is not necessary
to effect a valid search or seizure, or when the
latter cannot be performed except without a
warrant, what constitutes a reasonable or

unreasonable search or seizure is purely a judicial
question, determinable from the uniqueness of the
circumstances involved, including the purpose of
the search or seizure, the presence or absence of
probable cause, the manner in which the search
and seizure was made, the place or thing searched
and the character of the articles procured.14
It is not controverted that the search and seizure
conducted by the police officers in the case at bar
was not authorized by a search warrant. The main
issue is whether the evidence taken from the
warrantless search is admissible against the
appellant. Without said evidence, the prosecution
cannot prove the guilt of the appellant beyond
reasonable doubt.1âwphi1.nêt
I. Search of moving vehicle
Highly regulated by the government, the vehicle's
inherent mobility reduces expectation of privacy
especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting
to probable cause that the occupant committed a
criminal activity.15 Thus, the rules governing
search and seizure have over the years been
steadily liberalized whenever a moving vehicle is
the object of the search on the basis of practicality.
This is so considering that before a warrant could
be obtained, the place, things and persons to be
searched must be described to the satisfaction of
the issuing judge — a requirement which borders
on the impossible in the case of smuggling effected
by the use of a moving vehicle that can transport
contraband from one place to another with
impunity. We might add that a warrantless search
of a moving vehicle is justified on the ground that it
is not practicable to secure a warrant because the
vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought.16
Searches without warrant of automobiles is also
allowed for the purpose of preventing violations of
smuggling or immigration laws, provided such
searches are made at borders or 'constructive
borders' like checkpoints near the boundary lines of
the State.17
The mere mobility of these vehicles, however, does
not give the police officers unlimited discretion to
conduct indiscriminate searches without warrants if
made within the interior of the territory and in the
absence of probable cause.18 Still and all, the
important thing is that there was probable cause to
CONSTI LAW II ACJUCO 37
conduct the warrantless search, which must still be
present in such a case.
Although the term eludes exact definition, probable
cause signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in
themselves to warrant a cautious man's belief that
the person accused is guilty of the offense with
which he is charged; or the existence of such facts
and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense
has been committed and that the items, articles or
objects sought in connection with said offense or
subject to seizure and destruction by law is in the
place to be searched.19 The required probable
cause that will justify a warrantless search and
seizure is not determined by a fixed formula but is
resolved according to the facts of each case.20
One such form of search of moving vehicles is the
"stop-and-search" without warrant at military or
police checkpoints which has been declared to be
not illegal per se,21 for as long as it is warranted by
the exigencies of public order22 and conducted in a
way least intrusive to motorists.23 A checkpoint
may either be a mere routine inspection or it may
involve an extensive search.
Routine inspections are not regarded as violative of
an individual's right against unreasonable search.
The search which is normally permissible in this
instance is limited to the following instances: (1)
where the officer merely draws aside the curtain of
a vacant vehicle which is parked on the public fair
grounds;24 (2) simply looks into a vehicle;25 (3)
flashes a light therein without opening the car's
doors;26 (4) where the occupants are not subjected
to a physical or body search;27 (5) where the
inspection of the vehicles is limited to a visual
search or visual inspection;28 and (6) where the
routine check is conducted in a fixed area.29
None of the foregoing circumstances is obtaining in
the case at bar. The police officers did not merely
conduct a visual search or visual inspection of
herein petitioner's vehicle. They had to reach inside
the vehicle, lift the kakawati leaves and look inside
the sacks before they were able to see the cable
wires. It cannot be considered a simple routine
check.
In the case of United States vs. Pierre,30 the Court
held that the physical intrusion of a part of the body

of an agent into the vehicle goes beyond the area
protected by the Fourth Amendment, to wit:
"The Agent . . . stuck his head through the driver's
side window. The agent thus effected a physical
intrusion into the vehicle. . . [W]e are aware of no
case holding that an officer did not conduct a
search when he physically intruded part of his body
into a space in which the suspect had a reasonable
expectation of privacy. [The] Agent['s] . . . physical
intrusion allowed him to see and to smell things he
could not see or smell from outside the vehicle. . .
In doing so, his inspection went beyond that portion
of the vehicle which may be viewed from outside
the vehicle by either inquisitive passersby or
diligent police officers, and into the area protected
by the Fourth amendment, just as much as if he
had stuck his head inside the open window of a
home."
On the other hand, when a vehicle is stopped and
subjected to an extensive search, such a
warrantless search would be constitutionally
permissible only if the officers conducting the
search have reasonable or probable cause to
believe, before the search, that either the motorist
is a law-offender or they will find the instrumentality
or evidence pertaining to a crime in the vehicle to
be searched.31
This Court has in the past found probable cause to
conduct without a judicial warrant an extensive
search of moving vehicles in situations where (1)
there had emanated from a package the distinctive
smell of marijuana; (2) agents of the Narcotics
Command ("Narcom") of the Philippine National
Police ("PNP") had received a confidential report
from informers that a sizeable volume of marijuana
would be transported along the route where the
search was conducted; (3) Narcom agents had
received information that a Caucasian coming from
Sagada, Mountain Province, had in his possession
prohibited drugs and when the Narcom agents
confronted the accused Caucasian, because of a
conspicuous bulge in his waistline, he failed to
present his passport and other identification papers
when requested to do so; (4) Narcom agents had
received confidential information that a woman
having the same physical appearance as that of the
accused would be transporting marijuana;32 (5) the
accused who were riding a jeepney were stopped
and searched by policemen who had earlier
received confidential reports that said accused
would transport a large quantity of marijuana; and
CONSTI LAW II ACJUCO 38
(6) where the moving vehicle was stopped and
searched on the basis of intelligence information
and clandestine reports by a deep penetration
agent or spy - one who participated in the drug
smuggling activities of the syndicate to which the
accused belonged - that said accused were
bringing prohibited drugs into the country.33
In the case at bar, the vehicle of the petitioner was
flagged down because the police officers who were
on routine patrol became suspicious when they saw
that the back of the vehicle was covered with
kakawati leaves which, according to them, was
unusual and uncommon.
Pat. Alex de Castro recounted the incident as
follows:
"ATTY. SANTOS
Q Now on said date and time do you remember
of any unusual incident while you were performing
your duty?
A Yes, sir, at that time and date myself and
Police Sgt. Noceja were conducting patrol in the
said place when we spotted a suspicious jeepney
so we stopped the jeepney and searched the load
of the jeepney and we found out (sic) these
conductor wires.
Q You mentioned about the fact that when you
saw the jeepney you became suspicious, why did
you become suspicious?
A Because the cargo was covered with leaves
and branches, sir.
Q When you became suspicious upon seeing
those leaves on top of the load what did you do
next, if any?
A We stopped the jeepney and searched the
contents thereof, sir."34
The testimony of Victorino Noceja did not fare any
better:
"ATTY SANTOS
Q When you saw the accused driving the said
vehicle, what did you do?

A Because I saw that the vehicle being drawn
by Caballes was covered by kakawati leaves, I
became suspicious since such vehicle should not
be covered by those and I flagged him, sir."35
We hold that the fact that the vehicle looked
suspicious simply because it is not common for
such to be covered with kakawati leaves does not
constitute "probable cause" as would justify the
conduct of a search without a warrant.
In People vs. Chua Ho San,36 we held that the fact
that the watercraft used by the accused was
different in appearance from the usual fishing boats
that commonly cruise over the Bacnotan seas
coupled with the suspicious behavior of the
accused when he attempted to flee from the police
authorities do not sufficiently establish probable
cause. Thus:
"In the case at bar, the Solicitor General proposes
that the following details are suggestive of probable
cause - persistent reports of rampant smuggling of
firearm and other contraband articles, CHUA's
watercraft differing in appearance from the usual
fishing boats that commonly cruise over the
Bacnotan seas, CHUA's illegal entry into the
Philippines x x x, CHUA's suspicious behavior, i.e.,
he attempted to flee when he saw the police
authorities, and the apparent ease by which CHUA
can return to and navigate his speedboat with
immediate dispatch towards the high seas, beyond
the reach of Philippine laws.
This Court, however, finds that these do not
constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent
odor of marijuana or other prohibited drug,
confidential report and/or positive identification by
informers of courier of prohibited drug and/or the
time and place where they will transport/deliver the
same, suspicious demeanor or behavior, and
suspicious bulge in the waist - accepted by this
Court as sufficient to justify a warrantless arrest
exists in this case. There was no classified
information that a foreigner would disembark at
Tammocalao beach bearing prohibited drug on the
date in question. CHUA was not identified as a drug
courier by a police informer or agent. The fact that
the vessel that ferried him to shore bore no
resemblance to the fishing boats of the area did not
automatically mark him as in the process of
perpetrating an offense. x x x." (emphasis supplied)
CONSTI LAW II ACJUCO 39
In addition, the police authorities do not claim to
have received any confidential report or tipped
information that petitioner was carrying stolen cable
wires in his vehicle which could otherwise have
sustained their suspicion. Our jurisprudence is
replete with cases where tipped information has
become a sufficient probable cause to effect a
warrantless search and seizure.37 Unfortunately,
none exists in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found
in petitioner's vehicle were in plain view, making its
warrantless seizure valid.
Jurisprudence is to the effect that an object is in
plain view if the object itself is plainly exposed to
sight. Where the object seized was inside a closed
package, the object itself is not in plain view and
therefore cannot be seized without a warrant.
However, if the package proclaims its contents,
whether by its distinctive configuration, its
transparency, or if its contents are obvious to an
observer, then the contents are in plain view and
may be seized. In other words, if the package is
such that an experienced observer could infer from
its appearance that it contains the prohibited article,
then the article is deemed in plain view. It must be
immediately apparent to the police that the items
that they observe may be evidence of a crime,
contraband or otherwise subject to seizure.38
It is clear from the records of this case that the
cable wires were not exposed to sight because they
were placed in sacks39 and covered with leaves.
The articles were neither transparent nor
immediately apparent to the police authorities. They
had no clue as to what was hidden underneath the
leaves and branches. As a matter of fact, they had
to ask petitioner what was loaded in his vehicle. In
such a case, it has been held that the object is not
in plain view which could have justified mere
seizure of the articles without further search.40
III. Consented search
Petitioner contends that the statement of Sgt.
Victorino Noceja that he checked the vehicle "with
the consent of the accused" is too vague to prove
that petitioner consented to the search. He claims
that there is no specific statement as to how the
consent was asked and how it was given, nor the
specific words spoken by petitioner indicating his

alleged "consent." At most, there was only an
implied acquiescence, a mere passive conformity,
which is no "consent" at all within the purview of the
constitutional guarantee.
Doubtless, the constitutional immunity against
unreasonable searches and seizures is a personal
right which may be waived. The consent must be
voluntary in order to validate an otherwise illegal
detention and search, i.e., the consent is
unequivocal, specific, and intelligently given,
uncontaminated by any duress or coercion.41
Hence, consent to a search is not to be lightly
inferred, but must be shown by clear and
convincing evidence.42 The question whether a
consent to a search was in fact voluntary is a
question of fact to be determined from the totality of
all the circumstances.43 Relevant to this
determination are the following characteristics of
the person giving consent and the environment in
which consent is given: (1) the age of the
defendant; (2) whether he was in a public or
secluded location; (3) whether he objected to the
search or passively looked on;44 (4) the education
and intelligence of the defendant; (5) the presence
of coercive police procedures; (6) the defendant's
belief that no incriminating evidence will be
found;45 (7) the nature of the police questioning;
(8) the environment in which the questioning took
place; and (9) the possibly vulnerable subjective
state of the person consenting.46 It is the State
which has the burden of proving, by clear and
positive testimony, that the necessary consent was
obtained and that it was freely and voluntarily
given.47
In the case at bar, Sgt. Victorino Noceja testified on
the manner in which the search was conducted in
this wise:
"WITNESS
Q On June 28, 1989, where were you?
A We were conducting patrol at the poblacion
and some barangays, sir.
xxx xxx xxx
Q After conducting the patrol operation, do you
remember of any unusual incident on said date and
time?
A Yes, sir.
CONSTI LAW II ACJUCO 40
Q What is that incident?
A While I was conducting my patrol at barangay
Sampalucan, I saw Rudy Caballes driving a vehicle
and the vehicle contained aluminum wires, sir.
xxx xxx xxx
Q When you saw the accused driving the said
vehicle, what did you do?
A Because I saw that the vehicle being driven
by Caballes was covered by kakawati leaves, I
became suspicious since such vehicle should not
be covered by those and I flagged him, sir.
Q Did the vehicle stop?
A Yes, sir, and after said vehicle stop[ped], I
removed the cover of said vehicle and by so doing,
I saw the aluminum wires.
Q Before you saw the aluminum wires, did you
talk to the accused?
A Yes, sir, I asked him what his load was.
Q What was the answer of Caballes?
A He did not answer and I observed him to be
pale, "nagpapamutla" (sic), so I told him I will look
at the contents of his vehicle and he answered in
the positive.
Q And after you saw for yourself the aluminum
wires loaded on the jeep, what did you do?
A I asked him where those wires came from
and he answered those came from the Cavinti
area, sir."48
This Court is not unmindful of cases upholding the
validity of consented warrantless searches and
seizure. But in these cases, the police officers'
request to search personnel effects was orally
articulated to the accused and in such language
that left no room for doubt that the latter fully
understood what was requested. In some instance,
the accused even verbally replied to the request
demonstrating that he also understood the nature
and consequences of such request.49

In Asuncion vs. Court of Appeals,50 the
apprehending officers sought the permission of
petitioner to search the car, to which the latter
agreed. Petitioner therein himself freely gave his
consent to said search. In People vs. Lacerna,51
the appellants who were riding in a taxi were
stopped by two policemen who asked permission to
search the vehicle and the appellants readily
agreed. In upholding the validity of the consented
search, the Court held that appellant himself who
was "urbanized in mannerism and speech"
expressly said that he was consenting to the search
as he allegedly had nothing to hide and had done
nothing wrong. In People vs. Cuizon,52 the
accused admitted that they signed a written
permission stating that they freely consented to the
search of their luggage by the NBI agents to
determine if they were carrying shabu. In People
vs. Montilla,53 it was held that the accused
spontaneously performed affirmative acts of volition
by himself opening the bag without being forced or
intimidated to do so, which acts should properly be
construed as a clear waiver of his right. In People
vs. Omaweng,54 the police officers asked the
accused if they could see the contents of his bag to
which the accused said "you can see the contents
but those are only clothings." Then the policemen
asked if they could open and see it, and accused
answered "you can see it." The Court said there
was a valid consented search.1âwphi1.nêt
In case of consented searches or waiver of the
constitutional guarantee against obtrusive
searches, it is fundamental that to constitute a
waiver, it must first appear that (1) the right exists;
(2) that the person involved had knowledge, either
actual or constructive, of the existence of such
right; and (3) the said person had an actual
intention to relinquish the right.55
In the case at bar, the evidence is lacking that the
petitioner intentionally surrendered his right against
unreasonable searches. The manner by which the
two police officers allegedly obtained the consent of
petitioner for them to conduct the search leaves
much to be desired. When petitioner's vehicle was
flagged down, Sgt. Noceja approached petitioner
and "told him I will look at the contents of his
vehicle and he answered in the positive." We are
hard put to believe that by uttering those words, the
police officers were asking or requesting for
permission that they be allowed to search the
vehicle of petitioner. For all intents and purposes,
they were informing, nay, imposing upon herein
CONSTI LAW II ACJUCO 41
petitioner that they will search his vehicle. The
"consent" given under intimidating or coercive
circumstances is no consent within the purview of
the constitutional guaranty. In addition, in cases
where this Court upheld the validity of consented
search, it will be noted that the police authorities
expressly asked, in no uncertain terms, for the
consent of the accused to be searched. And the
consent of the accused was established by clear
and positive proof. In the case of herein petitioner,
the statements of the police officers were not
asking for his consent; they were declaring to him
that they will look inside his vehicle. Besides, it is
doubtful whether permission was actually
requested and granted because when Sgt. Noceja
was asked during his direct examination what he
did when the vehicle of petitioner stopped, he
answered that he removed the cover of the vehicle
and saw the aluminum wires. It was only after he
was asked a clarificatory question that he added
that he told petitioner he will inspect the vehicle. To
our mind, this was more of an afterthought.
Likewise, when Pat. de Castro was asked twice in
his direct examination what they did when they
stopped the jeepney, his consistent answer was
that they searched the vehicle. He never testified
that he asked petitioner for permission to conduct
the search.56
Neither can petitioner's passive submission be
construed as an implied acquiescence to the
warrantless search. In People vs. Barros,57
appellant Barros, who was carrying a carton box,
boarded a bus where two policemen were riding.
The policemen inspected the carton and found
marijuana inside. When asked who owned the box,
appellant denied ownership of the box and failed to
object to the search. The Court there struck down
the warrantless search as illegal and held that the
accused is not to be presumed to have waived the
unlawful search conducted simply because he
failed to object, citing the ruling in the case of
People vs. Burgos,58 to wit:
"As the constitutional guaranty is not dependent
upon any affirmative act of the citizen, the courts do
not place the citizens in the position of either
contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a
consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the
law."
 CONSTI LAW II ACJUCO 42

Casting aside the cable wires as evidence, the

remaining evidence on record are insufficient to
sustain petitioner's conviction. His guilt can only be
established without violating the constitutional right
of the accused against unreasonable search and
seizure.

WHEREFORE, the impugned decision is

REVERSED and SET ASIDE, and accused Rudy
Caballes is hereby ACQUITTED of the crime
charged. Cost de oficio.

SO ORDERED.

PRIVACY OF COMMUNICATION

G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and
PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation

of Republic Act (RA) No. 4200, otherwise known as
the Anti-Wiretapping Act, on the issue of whether or
not an extension telephone is among the prohibited
devices in Section 1 of the Act, such that its use to
overhear a private conversation would constitute
unlawful interception of communications between
the two parties using a telephone line.

The facts presented by the People and narrated in

the respondent court's decision are not disputed by
the petitioner.

In the morning of October 22, 1975, complainant

Atty. Tito Pintor and his client Manuel Montebon
were in the living room of complainant's residence
discussing the terms for the withdrawal of the
complaint for direct assault which they filed with the
Office of the City Fiscal of Cebu against Leonardo
Laconico. After they had decided on the proposed
conditions, complainant made a telephone call to
Laconico (tsn, August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned
appellant, who is a lawyer, to come to his office and
advise him on the settlement of the direct assault
case because his regular lawyer, Atty. Leon
Gonzaga, went on a business trip. According to the
request, appellant went to the office of Laconico
where he was briefed about the problem. (Exhibit
'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested
appellant to secretly listen to the telephone
conversation through a telephone extension so as
to hear personally the proposed conditions for the
settlement. Appellant heard complainant enumerate
the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable,
and that the figure had been increased to
P8,000.00. A breakdown of the P8,000.00 had
been made together with other demands, to wit: (a)
P5,000.00 no longer for the teacher Manuel
Montebon, but for Atty. Pintor himself in persuading
his client to withdraw the case for Direct Assault
against Atty. Laconico before the Cebu City Fiscal's
Office;
(b) Public apology to be made by Atty.
Laconico before the students of Don Bosco
Technical High School;
(c) Pl,000.00 to be given to the Don Bosco
Faculty club;
(d) transfer of son of Atty. Laconico to another
school or another section of Don Bosco Technical
High School;
(e) Affidavit of desistance by Atty. Laconico on
the Maltreatment case earlier filed against Manuel
Montebon at the Cebu City Fiscal's Office, whereas
Montebon's affidavit of desistance on the Direct
Assault Case against Atty. Laconico to be filed
later;
(f) Allow Manuel Montebon to continue
teaching at the Don Bosco Technical School;
(g) Not to divulge the truth about the settlement
of the Direct Assault Case to the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor.
(tsn, August 26, 1981, pp. 47-48).
CONSTI LAW II ACJUCO 43
Twenty minutes later, complainant called up again
to ask Laconico if he was agreeable to the
conditions. Laconico answered 'Yes'. Complainant
then told Laconico to wait for instructions on where
to deliver the money. (tsn, March 10, 1983, pp. 2-
12).
Complainant called up again and instructed
Laconico to give the money to his wife at the office
of the then Department of Public Highways.
Laconico who earlier alerted his friend Colonel
Zulueta of the Criminal Investigation Service of the
Philippine Constabulary, insisted that complainant
himself should receive the money. (tsn, March 10,
1982, pp. 26-33). When he received the money at
the Igloo Restaurant, complainant was arrested by
agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit
stating that he heard complainant demand
P8,000.00 for the withdrawal of the case for direct
assault. Laconico attached the affidavit of appellant
to the complainant for robbery/extortion which he
filed against complainant. Since appellant listened
to the telephone conversation without
complainant's consent, complainant charged
appellant and Laconico with violation of the Anti-
Wiretapping Act.
After trial on the merits, the lower court, in a
decision dated November 22, 1982, found both
Gaanan and Laconico guilty of violating Section 1
of Republic Act No. 4200. The two were each
sentenced to one (1) year imprisonment with costs.
Not satisfied with the decision, the petitioner
appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate
Court affirmed the decision of the trial court, holding
that the communication between the complainant
and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the
petitioner overheard such communication without
the knowledge and consent of the complainant; and
that the extension telephone which was used by the
petitioner to overhear the telephone conversation
between complainant and Laconico is covered in
the term "device' as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails
the decision of the appellate court and raises the
following issues; (a) whether or not the telephone
conversation between the complainant and
accused Laconico was private in nature; (b)

whether or not an extension telephone is covered
by the term "device or arrangement" under Rep.
Act No. 4200; (c) whether or not the petitioner had
authority to listen or overhear said telephone
conversation and (d) whether or not Rep. Act No.
4200 is ambiguous and, therefore, should be
construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not
being authorized by all the parties to any private
communication or spoken word, to tap any wire or
cable or by using any other device or arrangement,
to secretly overhear, intercept, or record such
communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape-recorder, or
however otherwise described:
It shall be unlawful for any person, be he a
participant or not in the act or acts penalized in the
next preceeding sentence, to knowingly possess
any tape record, wire record, disc record, or any
other such record, or copies thereof, of any
communication or spoken word secured either
before or after the effective date of this Act in the
manner prohibited by this law; or to replay the
same for any other person or persons; or to
communicate the contents thereof, either verbally
or in writing, or to furnish transcriptions thereof,
whether complete or partial, to any other person:
Provided, that the use of such record or any copies
thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in
Section 3 hereof, shall not be covered by this
prohibition.
We rule for the petitioner.
We are confronted in this case with the
interpretation of a penal statute and not a rule of
evidence. The issue is not the admissibility of
evidence secured over an extension line of a
telephone by a third party. The issue is whether or
not the person called over the telephone and his
lawyer listening to the conversation on an extension
line should both face prison sentences simply
because the extension was used to enable them to
both listen to an alleged attempt at extortion.
There is no question that the telephone
conversation between complainant Atty. Pintor and
accused Atty. Laconico was "private" in the sense
CONSTI LAW II ACJUCO 44
that the words uttered were made between one
person and another as distinguished from words
between a speaker and a public. It is also
undisputed that only one of the parties gave the
petitioner the authority to listen to and overhear the
caller's message with the use of an extension
telephone line. Obviously, complainant Pintor, a
member of the Philippine bar, would not have
discussed the alleged demand for an P8,000.00
consideration in order to have his client withdraw a
direct assault charge against Atty. Laconico filed
with the Cebu City Fiscal's Office if he knew that
another lawyer was also listening. We have to
consider, however, that affirmance of the criminal
conviction would, in effect, mean that a caller by
merely using a telephone line can force the listener
to secrecy no matter how obscene, criminal, or
annoying the call may be. It would be the word of
the caller against the listener's.
Because of technical problems caused by the
sensitive nature of electronic equipment and the
extra heavy loads which telephone cables are
made to carry in certain areas, telephone users
often encounter what are called "crossed lines". An
unwary citizzen who happens to pick up his
telephone and who overhears the details of a crime
might hesitate to inform police authorities if he
knows that he could be accused under Rep. Act
4200 of using his own telephone to secretly
overhear the private communications of the would
be criminals. Surely the law was never intended for
such mischievous results.
The main issue in the resolution of this petition,
however, revolves around the meaning of the
phrase "any other device or arrangement." Is an
extension of a telephone unit such a device or
arrangement as would subject the user to
imprisonment ranging from six months to six years
with the accessory penalty of perpetual absolute
disqualification for a public officer or deportation for
an alien? Private secretaries with extension lines to
their bosses' telephones are sometimes asked to
use answering or recording devices to record
business conversations between a boss and
another businessman. Would transcribing a
recorded message for the use of the boss be a
proscribed offense? or for that matter, would a
"party line" be a device or arrangement under the
law?
The petitioner contends that telephones or
extension telephones are not included in the

enumeration of "commonly known" listening or
recording devices, nor do they belong to the same
class of enumerated electronic devices
contemplated by law. He maintains that in 1964,
when Senate Bill No. 9 (later Rep. Act No. 4200)
was being considered in the Senate, telephones
and extension telephones were already widely used
instruments, probably the most popularly known
communication device.
Whether or not listening over a telephone party line
would be punishable was discussed on the floor of
the Senate. Yet, when the bill was finalized into a
statute, no mention was made of telephones in the
enumeration of devices "commonly known as a
dictaphone or dictagraph, detectaphone or walkie
talkie or tape recorder or however otherwise
described." The omission was not a mere
oversight. Telephone party lines were intentionally
deleted from the provisions of the Act.
The respondent People argue that an extension
telephone is embraced and covered by the term
"device" within the context of the aforementioned
law because it is not a part or portion of a complete
set of a telephone apparatus. It is a separate
device and distinct set of a movable apparatus
consisting of a wire and a set of telephone receiver
not forming part of a main telephone set which can
be detached or removed and can be transferred
away from one place to another and to be plugged
or attached to a main telephone line to get the
desired communication corning from the other party
or end.
The law refers to a "tap" of a wire or cable or the
use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the
communication. There must be either a physical
interruption through a wiretap or the deliberate
installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the
same category as a dictaphone, dictagraph or the
other devices enumerated in Section 1 of RA No.
4200 as the use thereof cannot be considered as
"tapping" the wire or cable of a telephone line. The
telephone extension in this case was not installed
for that purpose. It just happened to be there for
ordinary office use. It is a rule in statutory
construction that in order to determine the true
intent of the legislature, the particular clauses and
phrases of the statute should not be taken as
CONSTI LAW II ACJUCO 45
detached and isolated expressions, but the whole
and every part thereof must be considered in fixing
the meaning of any of its parts. (see Commissioner
of Customs v. Esso Estandard Eastern, Inc., 66
SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino
(90 SCRA 437, 443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates
that 'however general the terms of a contract may
be, they shall not be understood to comprehend
things that are distinct and cases that are different
from those upon which the parties intended to
agree.' Similarly, Article 1374 of the same Code
provides that 'the various stipulations of a contract
shall be interpreted together, attributing to the
doubtful ones that sense which may result from all
of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or
obligations of the decedent' used in paragraph 5(c)
and 7(d) should be then restricted only to those
listed in the Inventory and should not be construed
as to comprehend all other obligations of the
decedent. The rule that 'particularization followed
by a general expression will ordinarily be restricted
to the former' is based on the fact in human
experience that usually the minds of parties are
addressed specially to the particularization, and
that the generalities, though broad enough to
comprehend other fields if they stood alone, are
used in contemplation of that upon which the minds
of the parties are centered. (Hoffman v. Eastern
Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW
383, cited in Francisco, Revised Rules of Court
(Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in
Section 1 of RA No. 4200, although not exclusive to
that enumerated therein, should be construed to
comprehend instruments of the same or similar
nature, that is, instruments the use of which would
be tantamount to tapping the main line of a
telephone. It refers to instruments whose
installation or presence cannot be presumed by the
party or parties being overheard because, by their
very nature, they are not of common usage and
their purpose is precisely for tapping, intercepting
or recording a telephone conversation.

An extension telephone is an instrument which is
very common especially now when the extended
unit does not have to be connected by wire to the
main telephone but can be moved from place ' to
place within a radius of a kilometer or more. A
person should safely presume that the party he is
calling at the other end of the line probably has an
extension telephone and he runs the risk of a third
party listening as in the case of a party line or a
telephone unit which shares its line with another.
As was held in the case of Rathbun v. United
States (355, U.S. 107, 2 L Ed 2d 137-138):
Common experience tells us that a call to a
particular telephone number may cause the bell to
ring in more than one ordinarily used instrument.
Each party to a telephone conversation takes the
risk that the other party may have an extension
telephone and may allow another to overhear the
conversation. When such takes place there has
been no violation of any privacy of which the parties
may complain. Consequently, one element of 605,
interception, has not occurred.
In the same case, the Court further ruled that the
conduct of the party would differ in no way if
instead of repeating the message he held out his
hand-set so that another could hear out of it and
that there is no distinction between that sort of
action and permitting an outsider to use an
extension telephone for the same purpose.
Furthermore, it is a general rule that penal statutes
must be construed strictly in favor of the accused.
Thus, in case of doubt as in the case at bar, on
whether or not an extension telephone is included
in the phrase "device or arrangement", the penal
statute must be construed as not including an
extension telephone. In the case of People v.
Purisima, 86 SCRA 542, 562, we explained the
rationale behind the rule:
American jurisprudence sets down the reason for
this rule to be the tenderness of the law of the
rights of individuals; the object is to establish a
certain rule by conformity to which mankind would
be safe, and the discretion of the court limited.
(United States v. Harris, 177 US 305, 44 L Ed 780,
20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d
646; Caudill v. State, 224 Ind 531, 69 NE2d;
Jennings v. Commonwealth, 109 VA 821,63 SE
1080, all cited in 73 Am Jur 2d 452). The purpose is
not to enable a guilty person to escape punishment
through a technicality but to provide a precise
CONSTI LAW II ACJUCO 46
definition of forbidden acts." (State v. Zazzaro, 20 A
2d 737, quoted in Martin's Handbook on Statutory
Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on
the construction or interpretation of a legislative
measure, the primary rule is to search for and
determine the intent and spirit of the law. A perusal
of the Senate Congressional Records will show that
not only did our lawmakers not contemplate the
inclusion of an extension telephone as a prohibited
device or arrangement" but of greater importance,
they were more concerned with penalizing the act
of recording than the act of merely listening to a
telephone conversation.
xxx xxx xxx
Senator Tañada. Another possible objection to that
is entrapment which is certainly objectionable. It is
made possible by special amendment which Your
Honor may introduce.
Senator Diokno.Your Honor, I would feel that
entrapment would be less possible with the
amendment than without it, because with the
amendment the evidence of entrapment would only
consist of government testimony as against the
testimony of the defendant. With this amendment,
they would have the right, and the government
officials and the person in fact would have the right
to tape record their conversation.
Senator Tañada. In case of entrapment, it would be
the government.
Senator Diokno. In the same way, under this
provision, neither party could record and, therefore,
the court would be limited to saying: "Okay, who is
more credible, the police officers or the defendant?"
In these cases, as experienced lawyers, we know
that the Court go with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628,
March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that
under these conditions, with an agent outside
listening in, he could falsify the testimony and there
is no way of checking it. But if you allow him to
record or make a recording in any form of what is
 CONSTI LAW II ACJUCO 47

happening, then the chances of falsifying the

evidence is not very much.

Senator Tañada. Your Honor, this bill is not

intended to prevent the presentation of false
testimony. If we could devise a way by which we
could prevent the presentation of false testimony, it
would be wonderful. But what this bill intends to
prohibit is the use of tape record and other
electronic devices to intercept private conversations
which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12,

1964, p. 629).

It can be readily seen that our lawmakers intended

to discourage, through punishment, persons such
as government authorities or representatives of
organized groups from installing devices in order to
gather evidence for use in court or to intimidate,
blackmail or gain some unwarranted advantage
over the telephone users. Consequently, the mere
act of listening, in order to be punishable must
strictly be with the use of the enumerated devices
in RA No. 4200 or others of similar nature. We are
of the view that an extension telephone is not
among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The

decision of the then Intermediate Appellate Court
dated August 16, 1984 is ANNULLED and SET
ASIDE. The petitioner is hereby ACQUITTED of the G.R. No. 93833 September 28, 1995
crime of violation of Rep. Act No. 4200, otherwise
known as the Anti-Wiretapping Act. SOCORRO D. RAMIREZ, petitioner,
vs.
SO ORDERED. HONORABLE COURT OF APPEALS, and ESTER
S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner

Socorro D. Ramirez in the Regional Trial Court of
Quezon City alleging that the private respondent,
Ester S. Garcia, in a confrontation in the latter's
office, allegedly vexed, insulted and humiliated her
in a "hostile and furious mood" and in a manner
offensive to petitioner's dignity and personality,"
contrary to morals, good customs and public
policy."1

In support of her claim, petitioner produced a

verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of

litigation in the amount of P610,000.00, in addition
to costs, interests and other reliefs awardable at the
trial court's discretion. The transcript on which the
civil case was based was culled from a tape
recording of the confrontation made by petitioner.2
The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) —
Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) — Ano ba
ang nangyari sa 'yo, nakalimot ka na kung paano
ka napunta rito, porke member ka na,
magsumbong ka kung ano ang gagawin ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses
na nila akong binalikan, sabing ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo,
ayaw kung (sic) mag explain ka, kasi hanggang
10:00 p.m., kinabukasan hindi ka na pumasok.
Ngayon ako ang babalik sa 'yo, nag-aaply ka sa
States, nag-aaply ka sa review mo, kung
kakailanganin ang certification mo, kalimutan mo
na kasi hindi ka sa akin makakahingi.
CHUCHI — Hindi M'am. Kasi ang ano ko
talaga noon i-cocontinue ko up to 10:00 p.m.
ESG — Bastos ka, nakalimutan mo na kung
paano ka pumasok dito sa hotel. Magsumbong ka
sa Union kung gusto mo. Nakalimutan mo na kung
paano ka nakapasok dito "Do you think that on your
own makakapasok ka kung hindi ako.
Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI — Itutuloy ko na M'am sana ang
duty ko.
ESG — Kaso ilang beses na akong
binabalikan doon ng mga no (sic) ko.
ESG — Nakalimutan mo na ba kung paano
ka pumasok sa hotel, kung on your own merit alam
ko naman kung gaano ka "ka bobo" mo. Marami
ang nag-aaply alam kong hindi ka papasa.
CHUCHI — Kumuha kami ng exam noon.
ESG — Oo, pero hindi ka papasa.
CONSTI LAW II ACJUCO 48
CHUCHI — Eh, bakit ako ang nakuha ni
Dr. Tamayo
ESG — Kukunin ka kasi ako.
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may
utak ka kasi wala kang utak. Akala mo ba
makukuha ka dito kung hiniminal case before the
Regional Trial Court of Pasay City for violation of
Republic Act 4200, entitled "An Act to prohibit and
penalize wire tapping and other related violations of
private communication, and other purposes." An
information charging petitioner of violation of the
said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses
Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:
That on or about the 22nd day of February, 1988, in
Pasay City Metro Manila, Philippines, and within
the jurisdiction of this honorable court, the above-
named accused, Socorro D. Ramirez not being
authorized by Ester S. Garcia to record the latter's
conversation with said accused, did then and there
willfully, unlawfully and feloniously, with the use of a
tape recorder secretly record the said conversation
and thereafter communicate in writing the contents
of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a
Motion to Quash the Information on the ground that
the facts charged do not constitute an offense,
particularly a violation of R.A. 4200. In an order
May 3, 1989, the trial court granted the Motion to
Quash, agreeing with petitioner that 1) the facts
charged do not constitute an offense under R.A.
4200; and that 2) the violation punished by R.A.
4200 refers to a the taping of a communication by a
person other than a participant to the
communication.4

From the trial court's Order, the private respondent
filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the
Court of Appeals in a Resolution (by the First
Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals
promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and
holding that:
[T]he allegations sufficiently constitute an offense
punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that
the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of
discretion correctible by certiorari.5
Consequently, on February 21, 1990, petitioner
filed a Motion for Reconsideration which
respondent Court of Appeals denied in its
Resolution6 dated June 19, 1990. Hence, the
instant petition.
Petitioner vigorously argues, as her "main and
principal issue"7 that the applicable provision of
Republic Act 4200 does not apply to the taping of a
private conversation by one of the parties to the
conversation. She contends that the provision
merely refers to the unauthorized taping of a private
conversation by a party other than those involved in
the communication.8 In relation to this, petitioner
avers that the substance or content of the
conversation must be alleged in the Information,
otherwise the facts charged would not constitute a
violation of R.A. 4200.9 Finally, petitioner agues
that R.A. 4200 penalizes the taping of a "private
communication," not a "private conversation" and
that consequently, her act of secretly taping her
conversation with private respondent was not illegal
under the said act. 10
We disagree.
First, legislative intent is determined principally from
the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied
according to its express terms, and interpretation
would be resorted to only where a literal
interpretation would be either impossible 11 or
absurb or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit
and Penalized Wire Tapping and Other Related
CONSTI LAW II ACJUCO 49
Violations of Private Communication and Other
Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not
being authorized by all the parties to any private
communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such
communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape recorder, or
however otherwise described.
The aforestated provision clearly and unequivocally
makes it illegal for any person, not authorized by all
the parties to any private communication to secretly
record such communication by means of a tape
recorder. The law makes no distinction as to
whether the party sought to be penalized by the
statute ought to be a party other than or different
from those involved in the private communication.
The statute's intent to penalize all persons
unauthorized to make such recording is
underscored by the use of the qualifier "any".
Consequently, as respondent Court of Appeals
correctly concluded, "even a (person) privy to a
communication who records his private
conversation with another without the knowledge of
the latter (will) qualify as a violator" 13 under this
provision of R.A. 4200.
A perusal of the Senate Congressional Records,
moreover, supports the respondent court's
conclusion that in enacting R.A. 4200 our
lawmakers indeed contemplated to make illegal,
unauthorized tape recording of private
conversations or communications taken either by
the parties themselves or by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only
"overhear".
Senator Padilla: So that when it is intercepted
or recorded, the element of secrecy would not
appear to be material. Now, suppose, Your Honor,
the recording is not made by all the parties but by
some parties and involved not criminal cases that
would be mentioned under section 3 but would
cover, for example civil cases or special
proceedings whereby a recording is made not
necessarily by all the parties but perhaps by some
in an effort to show the intent of the parties

because the actuation of the parties prior,
simultaneous even subsequent to the contract or
the act may be indicative of their intention. Suppose
there is such a recording, would you say, Your
Honor, that the intention is to cover it within the
purview of this bill or outside?
Senator Tañada: That is covered by the
purview of this bill, Your Honor.
Senator Padilla: Even if the record should be
used not in the prosecution of offense but as
evidence to be used in Civil Cases or special
proceedings?
Senator Tañada: That is right. This is a
complete ban on tape recorded conversations
taken without the authorization of all the parties.
Senator Padilla: Now, would that be
reasonable, your Honor?
Senator Tañada: I believe it is reasonable
because it is not sporting to record the observation
of one without his knowing it and then using it
against him. It is not fair, it is not sportsmanlike. If
the purpose; Your honor, is to record the intention
of the parties. I believe that all the parties should
know that the observations are being recorded.
Senator Padilla: This might reduce the utility
of recorders.
Senator Tañada: Well no. For example, I was
to say that in meetings of the board of directors
where a tape recording is taken, there is no
objection to this if all the parties know. It is but fair
that the people whose remarks and observations
are being made should know that the observations
are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take
statements of persons, we say: "Please be
informed that whatever you say here may be used
against you." That is fairness and that is what we
demand. Now, in spite of that warning, he makes
damaging statements against his own interest, well,
he cannot complain any more. But if you are going
to take a recording of the observations and remarks
of a person without him knowing that it is being
taped or recorded, without him knowing that what is
CONSTI LAW II ACJUCO 50
being recorded may be used against him, I think it
is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584,
March 12, 1964)
Senator Diokno: Do you understand, Mr.
Senator, that under Section 1 of the bill as now
worded, if a party secretly records a public speech,
he would be penalized under Section 1? Because
the speech is public, but the recording is done
secretly.
Senator Tañada: Well, that particular aspect is
not contemplated by the bill. It is the
communication between one person and another
person — not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626,
March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the
provision, taken together with the above-quoted
deliberations from the Congressional Record,
therefore plainly supports the view held by the
respondent court that the provision seeks to
penalize even those privy to the private
communications. Where the law makes no
distinctions, one does not distinguish.
Second, the nature of the conversations is
immaterial to a violation of the statute. The
substance of the same need not be specifically
alleged in the information. What R.A. 4200
penalizes are the acts of secretly overhearing,
intercepting or recording private communications by
means of the devices enumerated therein. The
mere allegation that an individual made a secret
recording of a private communication by means of
a tape recorder would suffice to constitute an
offense under Section 1 of R.A. 4200. As the
Solicitor General pointed out in his COMMENT
before the respondent court: "Nowhere (in the said
law) is it required that before one can be regarded
as a violator, the nature of the conversation, as well
as its communication to a third person should be
professed." 14
 CONSTI LAW II ACJUCO 51

Finally, petitioner's contention that the phrase
"private communication" in Section 1 of R.A. 4200
does not include "private conversations" narrows
the ordinary meaning of the word "communication"
to a point of absurdity. The word communicate
comes from the latin word communicare, meaning
"to share or to impart." In its ordinary signification,
communication connotes the act of sharing or
imparting signification, communication connotes the
act of sharing or imparting, as in a conversation, 15
or signifies the "process by which meanings or
thoughts are shared between individuals through a
common system of symbols (as language signs or
gestures)" 16 These definitions are broad enough
to include verbal or non-verbal, written or
expressive communications of "meanings or
thoughts" which are likely to include the
emotionally-charged exchange, on February 22,
1988, between petitioner and private respondent, in
the privacy of the latter's office. Any doubts about
the legislative body's meaning of the phrase
"private communication" are, furthermore, put to
rest by the fact that the terms "conversation" and
"communication" were interchangeably used by
Senator Tañada in his Explanatory Note to the bill
quoted below:
R.A. 4200 because a telephone extension devise
was neither among those "device(s) or
arrangement(s)" enumerated therein, 19 following
the principle that "penal statutes must be construed
strictly in favor of the accused."20 The instant case
turns on a different note, because the applicable
facts and circumstances pointing to a violation of
R.A. 4200 suffer from no ambiguity, and the statute
itself explicitly mentions the unauthorized
"recording" of private communications with the use
of tape-recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the
case at bench is clear and unambiguous and
leaves us with no discretion, the instant petition is
hereby DENIED. The decision appealed from is
AFFIRMED. Costs against petitioner.
SO ORDERED.

It has been said that innocent people have nothing

to fear from their conversations being overheard.
But this statement ignores the usual nature of
conversations as well the undeniable fact that most,
if not all, civilized people have some aspects of
their lives they do not wish to expose. Free
conversations are often characterized by
exaggerations, obscenity, agreeable falsehoods,
and the expression of anti-social desires of views
not intended to be taken seriously. The right to the
privacy of communication, among others, has
expressly been assured by our Constitution.
Needless to state here, the framers of our
Constitution must have recognized the nature of
conversations between individuals and the RIGHT TO PRIVACY
significance of man's spiritual nature, of his feelings
and of his intellect. They must have known that part G.R. No. 127685 July 23, 1998
of the pleasures and satisfactions of life are to be
found in the unaudited, and free exchange of BLAS F. OPLE, petitioner,
communication between individuals — free from
every unjustifiable intrusion by whatever means.17 vs.

In Gaanan vs. Intermediate Appellate Court, 18 a RUBEN D. TORRES, ALEXANDER AGUIRRE,

case which dealt with the issue of telephone HECTOR VILLANUEVA, CIELITO HABITO,
wiretapping, we held that the use of a telephone ROBERT BARBERS, CARMENCITA REODICA,
extension for the purpose of overhearing a private CESAR SARINO, RENATO VALENCIA, TOMAS
conversation without authorization did not violate P. AFRICA, HEAD OF THE NATIONAL

COMPUTER CENTER and CHAIRMAN OF THE
COMMISSION ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the
part of Senator Blas F. Ople to prevent the
shrinking of the right to privacy, which the revered
Mr. Justice Brandeis considered as "the most
comprehensive of rights and the right most valued
by civilized men." 1 Petitioner Ople prays that we
invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification
Reference System" on two important constitutional
grounds, viz: one, it is a usurpation of the power of
Congress to legislate, and two, it impermissibly
intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights sought
to be vindicated by the petitioner need stronger
barriers against further erosion.
A.O. No. 308 was issued by President Fidel V.
Ramos On December 12, 1996 and reads as
follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino
citizens and foreign residents with the facility to
conveniently transact business with basic service
and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system
to properly and efficiently identify persons seeking
basic services on social security and reduce, if not
totally eradicate fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort
among the various basic services and social
security providing agencies and other government
intrumentalities is required to achieve such a
system;
NOW, THEREFORE, I, FIDEL V. RAMOS,
President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby
direct the following:
CONSTI LAW II ACJUCO 52
Sec. 1. Establishment of a National Compoterized
Identification Reference System. A decentralized
Identification Reference System among the key
basic services and social security providers is
hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An
Inter-Agency Coordinating Committee (IACC) to
draw-up the implementing guidelines and oversee
the implementation of the System is hereby
created, chaired by the Executive Secretary, with
the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development
Authority
Secretary, Department of the Interior and Local
Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center
(NCC) is hereby designated as secretariat to the
IACC and as such shall provide administrative and
technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population
Reference Number (PRN) generated by the NSO
shall serve as the common reference number to
establish a linkage among concerned agencies.
The IACC Secretariat shall coordinate with the
different Social Security and Services Agencies to
establish the standards in the use of Biometrics
Technology and in computer application designs of
their respective systems.
Sec. 5. Conduct of Information Dissemination
Campaign. The Office of the Press Secretary, in
coordination with the National Statistics Office, the
GSIS and SSS as lead agencies and other
concerned agencies shall undertake a massive tri-
media information dissemination campaign to
educate and raise public awareness on the

importance and use of the PRN and the Social
Security Identification Reference.
Sec. 6. Funding. The funds necessary for the
implementation of the system shall be sourced from
the respective budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO,
GSIS and SSS shall submit regular reports to the
Office of the President through the IACC, on the
status of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall
take effect immediately.
DONE in the City of Manila, this 12th day of
December in the year of Our Lord, Nineteen
Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of
general circulation on January 22, 1997 and
January 23, 1997. On January 24, 1997, petitioner
filed the instant petition against respondents, then
Executive Secretary Ruben Torres and the heads
of the government agencies, who as members of
the Inter-Agency Coordinating Committee, are
charged with the implementation of A.O. No. 308.
On April 8, 1997, we issued a temporary restraining
order enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE
ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE
LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC
FUNDS BY THE PRESIDENT FOR THE
IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE
EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308
INSIDIOUSLY LAYS THE GROUNDWORK FOR A
CONSTI LAW II ACJUCO 53
SYSTEM WHICH WILL VIOLATE THE BILL OF
RIGHTS ENSHRINED IN THE CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A
JUSTICIABLE CASE AS WOULD WARRANT A
JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN
THE EXECUTIVE AND ADMINISTRATIVE
POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE
POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE
IMPLEMENTATION OF THE IDENTIFICATION
REFERENCE SYSTEM MAY BE SOURCED
FROM THE BUDGETS OF THE CONCERNED
AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN
INDIVIDUAL'S INTEREST IN PRIVACY. 3
We now resolve.
I
As is usual in constitutional litigation, respondents
raise the threshold issues relating to the standing to
sue of the petitioner and the justiciability of the case
at bar. More specifically, respondents aver that
petitioner has no legal interest to uphold and that
the implementing rules of A.O. No. 308 have yet to
be promulgated.
These submissions do not deserve our sympathetic
ear. Petitioner Ople is a distinguished member of
our Senate. As a Senator, petitioner is possessed
of the requisite standing to bring suit raising the
issue that the issuance of A.O. No. 308 is a
usurpation of legislative power. 4 As taxpayer and
member of the Government Service Insurance
System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the
misuse of GSIS funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar
is not affected by the fact that the implementing
rules of A.O. No. 308 have yet to be promulgated.
Petitioner Ople assails A.O. No. 308 as invalid per
se and as infirmed on its face. His action is not
premature for the rules yet to be promulgated
cannot cure its fatal defects. Moreover, the

respondents themselves have started the
implementation of A.O. No. 308 without waiting for
the rules. As early as January 19, 1997, respondent
Social Security System (SSS) caused the
publication of a notice to bid for the manufacture of
the National Identification (ID) card. 6 Respondent
Executive Secretary Torres has publicly announced
that representatives from the GSIS and the SSS
have completed the guidelines for the national
identification system. 7 All signals from the
respondents show their unswerving will to
implement A.O. No. 308 and we need not wait for
the formality of the rules to pass judgment on its
constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is
not a commendable stance as its result would be to
throttle an important constitutional principle and a
fundamental right.
II
We now come to the core issues. Petitioner claims
that A.O. No. 308 is not a mere administrative order
but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-
encompassing in scope, affects the life and liberty
of every Filipino citizen and foreign resident, and
more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not
to trespass on the lawmaking domain of Congress
is understandable. The blurring of the demarcation
line between the power of the Legislature to make
laws and the power of the Executive to execute
laws will disturb their delicate balance of power and
cannot be allowed. Hence, the exercise by one
branch of government of power belonging to
another will be given a stricter scrutiny by this
Court.
The line that delineates Legislative and Executive
power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and
to alter and repeal them." 8 The Constitution, as the
will of the people in their original, sovereign and
unlimited capacity, has vested this power in the
Congress of the Philippines. 9 The grant of
legislative power to Congress is broad, general and
comprehensive. 10 The legislative body possesses
plenary power for all purposes of civil government.
11 Any power, deemed to be legislative by usage
and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it
CONSTI LAW II ACJUCO 54
elsewhere. 12 In fine, except as limited by the
Constitution, either expressly or impliedly,
legislative power embraces all subjects and
extends to matters of general concern or common
interest. 13
While Congress is vested with the power to enact
laws, the President executes the laws. 14 The
executive power is vested in the Presidents. 15 It is
generally defined as the power to enforce and
administer the laws. 16 It is the power of carrying
the laws into practical operation and enforcing their
due observance. 17
As head of the Executive Department, the
President is the Chief Executive. He represents the
government as a whole and sees to it that all laws
are enforced by the officials and employees of his
department. 18 He has control over the executive
department, bureaus and offices. This means that
he has the authority to assume directly the
functions of the executive department, bureau and
office or interfere with the discretion of its
officials.19 Corollary to the power of control, the
President also has the duty of supervising the
enforcement of laws for the maintenance of general
peace and public order. Thus, he is granted
administrative power over bureaus and offices
under his control to enable him to discharge his
duties effectively. 20
Administrative power is concerned with the work of
applying policies and enforcing orders as
determined by proper governmental organs. 21 It
enables the President to fix a uniform standard of
administrative efficiency and check the official
conduct of his agents. 22 To this end, he can issue
administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O.
No. 308 involves a subject that is not appropriate to
be covered by an administrative order. An
administrative order is:
Sec. 3. Administrative Orders. — Acts of the
President which relate to particular aspects of
governmental operation in pursuance of his duties
as administrative head shall be promulgated in
administrative orders. 23
An administrative order is an ordinance issued by
the President which relates to specific aspects in
the administrative operation of government. It must
be in harmony with the law and should be for the

sole purpose of implementing the law and carrying
out the legislative policy. 24 We reject the argument
that A.O. No. 308 implements the legislative policy
of the Administrative Code of 1987. The Code is a
general law and "incorporates in a unified
document the major structural, functional and
procedural principles of governance." 25 and
"embodies changes in administrative structure and
procedures designed to serve the
people." 26 The Code is divided into seven (7)
Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of
Powers of the three branches of Government, Book
III on the Office of the President, Book IV on the
Executive Branch, Book V on Constitutional
Commissions, Book VI on National Government
Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the
organization, powers and general administration of
the executive, legislative and judicial branches of
government, the organization and administration of
departments, bureaus and offices under the
executive branch, the organization and functions of
the Constitutional Commissions and other
constitutional bodies, the rules on the national
government budget, as well as guideline for the
exercise by administrative agencies of quasi-
legislative and quasi-judicial powers. The Code
covers both the internal administration of
government, i.e, internal organization, personnel
and recruitment, supervision and discipline, and the
effects of the functions performed by administrative
officials on private individuals or parties outside
government. 27
It cannot be simplistically argued that A.O. No. 308
merely implements the Administrative Code of
1987. It establishes for the first time a National
Computerized Identification Reference System.
Such a System requires a delicate adjustment of
various contending state policies — the primacy of
national security, the extent of privacy interest
against dossier-gathering by government, the
choice of policies, etc. Indeed, the dissent of Mr.
Justice Mendoza states that the A.O. No. 308
involves the all-important freedom of thought. As
said administrative order redefines the parameters
of some basic rights of our citizenry vis-a-vis the
State as well as the line that separates the
administrative power of the President to make rules
and the legislative power of Congress, it ought to
be evident that it deals with a subject that should be
covered by law.
CONSTI LAW II ACJUCO 55
Nor is it correct to argue as the dissenters do that
A.D. No. 308 is not a law because it confers no
right, imposes no duty, affords no proctection, and
creates no office. Under A.O. No. 308, a citizen
cannot transact business with government
agencies delivering basic services to the people
without the contemplated identification card. No
citizen will refuse to get this identification card for
no one can avoid dealing with government. It is
thus clear as daylight that without the ID, a citizen
will have difficulty exercising his rights and enjoying
his privileges. Given this reality, the contention that
A.O. No. 308 gives no right and imposes no duty
cannot stand.
Again, with due respect, the dissenting opinions
unduly expand the limits of administrative
legislation and consequently erodes the plenary
power of Congress to make laws. This is contrary
to the established approach defining the traditional
limits of administrative legislation. As well stated by
Fisher: ". . . Many regulations however, bear
directly on the public. It is here that administrative
legislation must he restricted in its scope and
application. Regulations are not supposed to be a
substitute for the general policy-making that
Congress enacts in the form of a public law.
Although administrative regulations are entitled to
respect, the authority to prescribe rules and
regulations is not an independent source of power
to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not
be the subject of a law, still it cannot pass
constitutional muster as an administrative
legislation because facially it violates the right to
privacy. The essence of privacy is the "right to be
let alone." 29 In the 1965 case of Griswold v.
Connecticut, 30 the United States Supreme Court
gave more substance to the right of privacy when it
ruled that the right has a constitutional foundation.
It held that there is a right of privacy which can be
found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have
penumbras formed by emanations from these
guarantees that help give them life and
substance . . . various guarantees create zones of
privacy. The right of association contained in the
penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition

against the quartering of soldiers "in any house" in
time of peace without the consent of the owner is
another facet of that privacy. The Fourth
Amendment explicitly affirms the ''right of the
people to be secure in their persons, houses and
effects, against unreasonable searches and
seizures." The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a
zone of privacy which government may not force
him to surrender to his detriment. The Ninth
Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be
construed to deny or disparage others retained by
the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted
the Griswold ruling that there is a constitutional
right to privacy. Speaking thru Mr. Justice, later
Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut
statute which made the use of contraceptives a
criminal offence on the ground of its amounting to
an unconstitutional invasion of the right of privacy
of married persons; rightfully it stressed "a
relationship lying within the zone of privacy created
by several fundamental constitutional guarantees."
It has wider implications though. The constitutional
right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to
privacy as such is accorded recognition
independently of its identification with liberty; in
itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government
has always included the idea that governmental
powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the
basic distinctions between absolute and limited
government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of
the absolute state. In contrast, a system of limited
government safeguards a private sector, which
belongs to the individual, firmly distinguishing it
from the public sector, which the state can control.
Protection of this private sector — protection, in
other words, of the dignity and integrity of the
individual — has become increasingly important as
modern society has developed. All the forces of a
technological age — industrialization, urbanization,
and organization — operate to narrow the area of
CONSTI LAW II ACJUCO 56
privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this
enclave of private life marks the difference between
a democratic and a totalitarian society."
Indeed, if we extend our judicial gaze we will find
that the right of privacy is recognized and enshrined
in several provisions of our Constitution. 33 It is
expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in
various provisions of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty,
or property without due process of law, nor shall
any person be denied the equal protection of the
laws.
Sec. 2. The right of the people to be secure in their
persons, houses papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not
be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except
in the interest of national security, public safety, or
public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those
employed in the public and private sectors, to form
unions, associations, or societies for purposes not
contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be
a witness against himself.

Zones of privacy are likewise recognized and
protected in our laws. The Civil Code provides that
"[e]very person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons" and punishes as
actionable torts several acts by a person of
meddling and prying into the privacy of another. 35
It also holds a public officer or employee or any
private individual liable for damages for any
violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters
and other private communications. 37 The Revised
Penal Code makes a crime the violation of secrets
by an officer, 38 the revelation of trade and
industrial secrets, 39 and trespass to dwelling. 40
Invasion of privacy is an offense in special laws like
the Anti-Wiretapping Law, 41 the Secrecy of Bank
Deposits Act 42 and the Intellectual Property Code.
43 The Rules of Court on privileged communication
likewise recognize the privacy of certain
information. 44
Unlike the dissenters, we prescind from the
premise that the right to privacy is a fundamental
right guaranteed by the Constitution, hence, it is the
burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that
it is narrowly drawn. A.O. No. 308 is predicated on
two considerations: (1) the need to provides our
citizens and foreigners with the facility to
conveniently transact business with basic service
and social security providers and other government
instrumentalities and (2) the need to reduce, if not
totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic
services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O.
No. 308. But what is not arguable is the broadness,
the vagueness, the overbreadth of A.O. No. 308
which if implemented will put our people's right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which
provides for a Population Reference Number (PRN)
as a "common reference number to establish a
linkage among concerned agencies" through the
use of "Biometrics Technology" and "computer
application designs."
Biometry or biometrics is "the science of the
applicatin of statistical methods to biological facts; a
mathematical analysis of biological data." 45 The
term "biometrics" has evolved into a broad category
CONSTI LAW II ACJUCO 57
of technologies which provide precise confirmation
of an individual's identity through the use of the
individual's own physiological and behavioral
characteristics. 46 A physiological characteristic is
a relatively stable physical characteristic such as a
fingerprint, retinal scan, hand geometry or facial
features. A behavioral characteristic is influenced
by the individual's personality and includes voice
print, signature and keystroke. 47 Most biometric
idenfication systems use a card or personal
identificatin number (PIN) for initial identification.
The biometric measurement is used to verify that
the individual holding the card or entering the PIN is
the legitimate owner of the card or PIN. 48
A most common form of biological encoding is
finger-scanning where technology scans a fingertip
and turns the unique pattern therein into an
individual number which is called a biocrypt. The
biocrypt is stored in computer data banks 49 and
becomes a means of identifying an individual using
a service. This technology requires one's fingertip
to be scanned every time service or access is
provided. 50 Another method is the retinal scan.
Retinal scan technology employs optical technology
to map the capillary pattern of the retina of the eye.
This technology produces a unique print similar to a
finger print. 51 Another biometric method is known
as the "artificial nose." This device chemically
analyzes the unique combination of substances
excreted from the skin of people. 52 The latest on
the list of biometric achievements is the
thermogram. Scientists have found that by taking
pictures of a face using infra-red cameras, a unique
heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all
contribute to the individual's personal "heat
signature." 53
In the last few decades, technology has progressed
at a galloping rate. Some science fictions are now
science facts. Today, biometrics is no longer limited
to the use of fingerprint to identify an individual. It is
a new science that uses various technologies in
encoding any and all biological characteristics of an
individual for identification. It is noteworthy that
A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics
technology shall be used to identify people who will
seek its coverage. Considering the banquest of
options available to the implementors of A.O. No.
308, the fear that it threatens the right to privacy of
our people is not groundless.

A.O. No. 308 should also raise our antennas for a
further look will show that it does not state whether
encoding of data is limited to biological information
alone for identification purposes. In fact, the
Solicitor General claims that the adoption of the
Identification Reference System will contribute to
the "generation of population data for development
planning." 54 This is an admission that the PRN will
not be used solely for identification but the
generation of other data with remote relation to the
avowed purposes of A.O. No. 308. Clearly, the
indefiniteness of A.O. No. 308 can give the
government the roving authority to store and
retrieve information for a purpose other than the
identification of the individual through his PRN.
The potential for misuse of the data to be gathered
under A.O. No. 308 cannot be undarplayed as the
dissenters do. Pursuant to said administrative
order, an individual must present his PRN
everytime he deals with a government agency to
avail of basic services and security. His
transactions with the government agency will
necessarily be recorded — whether it be in the
computer or in the documentary file of the agency.
The individual's file may include his transactions for
loan availments, income tax returns, statement of
assets and liabilities, reimbursements for
medication, hospitalization, etc. The more frequent
the use of the PRN, the better the chance of
building a huge formidable informatin base through
the electronic linkage of the files. 55 The data may
be gathered for gainful and useful government
purposes; but the existence of this vast reservoir of
personal information constitutes a covert invitation
to misuse, a temptation that may be too great for
some of our authorities to resist. 56
We can even grant, arguendo, that the computer
data file will be limited to the name, address and
other basic personal infomation about the
individual. 57 Even that hospitable assumption will
not save A.O. No. 308 from constitutional infirmity
for again said order does not tell us in clear and
categorical terms how these information gathered
shall he handled. It does not provide who shall
control and access the data, under what
circumstances and for what purpose. These factors
are essential to safeguard the privacy and guaranty
the integrity of the information. 58 Well to note, the
computer linkage gives other government agencies
access to the information. Yet, there are no controls
to guard against leakage of information. When the
access code of the control programs of the
CONSTI LAW II ACJUCO 58
particular computer system is broken, an intruder,
without fear of sanction or penalty, can make use of
the data for whatever purpose, or worse,
manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short
of assuring that personal information which will be
gathered about our people will only be processed
for unequivocally specified purposes. 60 The lack
of proper safeguards in this regard of A.O. No. 308
may interfere with the individual's liberty of abode
and travel by enabling authorities to track down his
movement; it may also enable unscrupulous
persons to access confidential information and
circumvent the right against self-incrimination; it
may pave the way for "fishing expeditions" by
government authorities and evade the right against
unreasonable searches and seizures. 61 The
possibilities of abuse and misuse of the PRN,
biometrics and computer technology are
accentuated when we consider that the individual
lacks control over what can be read or placed on
his ID, much less verify the correctness of the data
encoded. 62 They threaten the very abuses that the
Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate
a comprehensive cradle-to-grave dossier on an
individual and transmit it over a national network is
one of the most graphic threats of the computer
revolution. 64 The computer is capable of
producing a comprehensive dossier on individuals
out of information given at different times and for
varied purposes. 65 It can continue adding to the
stored data and keeping the information up to date.
Retrieval of stored date is simple. When information
of a privileged character finds its way into the
computer, it can be extracted together with other
data on the subject. 66 Once extracted, the
information is putty in the hands of any person. The
end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly
drawn, the dissenting opinions would dismiss its
danger to the right to privacy as speculative and
hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its
role as the ultimate guardian of the people's liberty
if it would not immediately smother the sparks that
endanger their rights but would rather wait for the
fire that could consume them.
We reject the argument of the Solicitor General that
an individual has a reasonable expectation of

privacy with regard to the Natioal ID and the use of
biometrics technology as it stands on quicksand.
The reasonableness of a person's expectation of
privacy depends on a two-part test: (1) whether by
his conduct, the individual has exhibited an
expectation of privacy; and (2) whether this
expectation is one that society recognizes as
reasonable. 67 The factual circumstances of the
case determines the reasonableness of the
expectation. 68 However, other factors, such as
customs, physical surroundings and practices of a
particular activity, may serve to create or diminish
this expectation. 69 The use of biometrics and
computer technology in A.O. No. 308 does not
assure the individual of a reasonable expectation of
privacy. 70 As technology advances, the level of
reasonably expected privacy decreases. 71 The
measure of protection granted by the reasonable
expectation diminishes as relevant technology
becomes more widely accepted. 72 The security of
the computer data file depends not only on the
physical inaccessibility of the file but also on the
advances in hardware and software computer
technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of
privacy, regardless of technology used, cannot be
inferred from its provisions.
The rules and regulations to be by the IACC cannot
remedy this fatal defect. Rules and regulations
merely implement the policy of the law or order. On
its face, A.O. No. gives the IACC virtually infettered
discretion to determine the metes and bounds of
the ID System.
Nor do your present laws prvide adequate
safeguards for a reasonable expectation of privacy.
Commonwealth Act. No. 591 penalizes the
disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine.
73 Republic Act. No. 1161 prohibits public
disclosure of SSS employment records and reports.
74 These laws, however, apply to records and data
with the NSO and the SSS. It is not clear whether
they may be applied to data with the other
government agencies forming part of the National
ID System. The need to clarify the penal aspect of
A.O. No. 308 is another reason why its enactment
should be given to Congress.
Next, the Solicitor General urges us to validate A.O.
No. 308's abridgment of the right of privacy by
using the rational relationship test. 75 He stressed
that the purposes of A.O. No. 308 are: (1) to
CONSTI LAW II ACJUCO 59
streamline and speed up the implementation of
basic government services, (2) eradicate fraud by
avoiding duplication of services, and (3) generate
population data for development planning. He
cocludes that these purposes justify the incursions
into the right to privacy for the means are rationally
related to the end. 76
We are not impressed by the argument. In Morfe v.
Mutuc, 77 we upheld the constitutionality of R.A.
3019, the Anti-Graft and Corrupt Practices Act, as a
valid police power measure. We declared that the
law, in compelling a public officer to make an
annual report disclosing his assets and liabilities,
his sources of income and expenses, did not
infringe on the individual's right to privacy. The law
was enacted to promote morality in public
administration by curtailing and minimizing the
opportunities for official corruption and maintaining
a standard of honesty in the public service. 78
The same circumstances do not obtain in the case
at bar. For one, R.A. 3019 is a statute, not an
administrative order. Secondly, R.A. 3019 itself is
sufficiently detailed. The law is clear on what
practices were prohibited and penalized, and it was
narrowly drawn to avoid abuses. IN the case at bar,
A.O. No. 308 may have been impelled by a worthy
purpose, but, it cannot pass constitutional scrutiny
for it is not narrowly drawn. And we now hod that
when the integrity of a fundamental right is at stake,
this court will give the challenged law,
administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke
the presumption of regularity in the performance of
official duties. Nor is it enough for the authorities to
prove that their act is not irrational for a basic right
can be diminished, if not defeated, even when the
government does not act irrationally. They must
satisfactorily show the presence of compelling state
interests and that the law, rule or regulation is
narrowly drawn to preclude abuses. This approach
is demanded by the 1987 Constitution whose entire
matrix is designed to protect human rights and to
prevent authoritarianism. In case of doubt, the least
we can do is to lean towards the stance that will not
put in danger the rights protected by the
Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor
General is also off-line. In Whalen, the United
States Supreme Court was presented with the
question of whether the State of New York could
keep a centralized computer record of the names

and addresses of all persons who obtained certain
drugs pursuant to a doctor's prescription. The New
York State Controlled Substance Act of 1972
required physicians to identify parties obtaining
prescription drugs enumerated in the statute, i.e.,
drugs with a recognized medical use but with a
potential for abuse, so that the names and
addresses of the patients can be recorded in a
centralized computer file of the State Department of
Health. The plaintiffs, who were patients and
doctors, claimed that some people might decline
necessary medication because of their fear that the
computerized data may be readily available and
open to public disclosure; and that once disclosed,
it may stigmatize them as drug addicts. 80 The
plaintiffs alleged that the statute invaded a
constitutionally protected zone of privacy, i.e., the
individual interest in avoiding disclosure of personal
matters, and the interest in independence in
making certain kinds of important decisions. The
U.S. Supreme Court held that while an individual's
interest in avoiding disclosuer of personal matter is
an aspect of the right to privacy, the statute did not
pose a grievous threat to establish a constitutional
violation. The Court found that the statute was
necessary to aid in the enforcement of laws
designed to minimize the misuse of dangerous
drugs. The patient-identification requirement was a
product of an orderly and rational legislative
decision made upon recommmendation by a
specially appointed commission which held
extensive hearings on the matter. Moreover, the
statute was narrowly drawn and contained
numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure
and requirements for the gathering, storage and
retrieval of the informatin. It ebumerated who were
authorized to access the data. It also prohibited
public disclosure of the data by imposing penalties
for its violation. In view of these safeguards, the
infringement of the patients' right to privacy was
justified by a valid exercise of police power. As we
discussed above, A.O. No. 308 lacks these vital
safeguards.
Even while we strike down A.O. No. 308, we spell
out in neon that the Court is not per se agains the
use of computers to accumulate, store, process,
retvieve and transmit data to improve our
bureaucracy. Computers work wonders to achieve
the efficiency which both government and private
industry seek. Many information system in different
countries make use of the computer to facilitate
important social objective, such as better law
CONSTI LAW II ACJUCO 60
enforcement, faster delivery of public services,
more efficient management of credit and insurance
programs, improvement of telecommunications and
streamlining of financial activities. 81 Used wisely,
data stored in the computer could help good
administration by making accurate and
comprehensive information for those who have to
frame policy and make key decisions. 82 The
benefits of the computer has revolutionized
information technology. It developed the internet,
83 introduced the concept of cyberspace 84 and
the information superhighway where the individual,
armed only with his personal computer, may surf
and search all kinds and classes of information
from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the
right to privacy does not bar all incursions into
individual privacy. The right is not intended to stifle
scientific and technological advancements that
enhance public service and the common good. It
merely requires that the law be narrowly focused 85
and a compelling interest justify such intrusions. 86
Intrusions into the right must be accompanied by
proper safeguards and well-defined standards to
prevent unconstitutional invasions. We reiterate
that any law or order that invades individual privacy
will be subjected by this Court to strict scrutiny. The
reason for this stance was laid down in Morfe v.
Mutuc, to wit:
The concept of limited government has always
included the idea that governmental powers stop
short of certain intrusions into the personal life of
the citizen. This is indeed one of the basic
disctinctions between absolute and limited
government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of
the absolute state. In contrast, a system of limited
government safeguards a private sector, which
belongs to the individual, firmly distinguishing it
from the public sector, which the state can control.
Protection of this private sector — protection, in
other words, of the dignity and integrity of the
individual — has become increasingly important as
modern society has developed. All the forces of a
technological age — industrialization, urbanization,
and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this
enclave of private life marks the difference between
a democratic and a totalitarian society. 87
IV
 CONSTI LAW II ACJUCO 61

The right to privacy is one of the most threatened

rights of man living in a mass society. The threats
emanate from various sources — governments,
journalists, employers, social scientists, etc. 88 In
th case at bar, the threat comes from the executive
branch of government which by issuing A.O. No.
308 pressures the people to surrender their privacy
by giving information about themselves on the
pretext that it will facilitate delivery of basic
services. Given the record-keeping power of the
computer, only the indifferent fail to perceive the
danger that A.O. No. 308 gives the government the
power to compile a devastating dossier against
unsuspecting citizens. It is timely to take note of the
well-worded warning of Kalvin, Jr., "the disturbing
result could be that everyone will live burdened by
an unerasable record of his past and his limitations.
In a way, the threat is that because of its record-
keeping, the society will have lost its benign
capacity to forget." 89 Oblivious to this counsel, the
dissents still say we should not be too quick in
labelling the right to privacy as a fundamental right.
We close with the statement that the right to privacy
was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and

Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference
System" declared null and void for being
unconstitutional.

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
CONSTI LAW II ACJUCO 62
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
CONSTI LAW II ACJUCO 63
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.
In an Order 2 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 to revenue producing activities. Indeed, commercial
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
CONSTI LAW II ACJUCO 64
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
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
CONSTI LAW II ACJUCO 65
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
CONSTI LAW II ACJUCO 66
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
CONSTI LAW II ACJUCO 67
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
 CONSTI LAW II ACJUCO 68

that Honasan's complaint was a "scissors and

paste" pleading, cut out straight grom the complaint b) Treating the Manifestations of petitioners
of private respondent Ponce Enrile in Civil Case dated 30 March 1988 and 4 April 1988 as separate
No. 88-151. Petitioner Ayer Productions, in a Petitions for Certiorari with Prayer for Preliminary
separate Manifestation dated 4 April 1988, brought Injunction or Restraining Order, the Court, in the
to the attention of the Court the same information exercise of its plenary and supervisory jurisdiction,
given by petitoner Hal McElroy, reiterating that the hereby REQUIRES Judge Teofilo Guadiz of the
complaint of Gregorio B. Honasan was substantially Regional Trial Court of Makati, Branch 147,
identical to that filed by private respondent herein forthwith to DISMISS Civil Case No. 88-413 and
and stating that in refusing to join Honasan in Civil accordingly to SET ASIDE and DISSOLVE his
Case No. 88-151, counsel for private respondent, Temporary Restraining Order dated 25 March 1988
with whom counsel for Gregorio Honasan are and any Preliminary Injunction that may have been
apparently associated, deliberately engaged in issued by him.
"forum shopping."
No pronouncement as to costs.
Private respondent filed a Counter-Manifestation on
13 April 1988 stating that the "slight similarity" SO ORDERED.
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
 CONSTI LAW II ACJUCO 69

forensic laboratories or by any of the drug testing

laboratories accredited and monitored by the DOH
to safeguard the quality of the test results. x x x The
drug testing shall employ, among others, two (2)
testing methods, the screening test which will
determine the positive result as well as the type of
drug used and the confirmatory test which will
confirm a positive screening test. x x x The
following shall be subjected to undergo drug
G.R. No. 157870 November 3, 2008 testing:

SOCIAL JUSTICE SOCIETY (SJS), petitioner xxxx

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE (c) Students of secondary and tertiary schools. -
DRUG ENFORCEMENT AGENCY (PDEA), Students of secondary and tertiary schools shall,
respondents. pursuant to the related rules and regulations as
contained in the school's student handbook and
x-----------------------------------x with notice to the parents, undergo a random drug
testing x x x;
G.R. No. 158633 November 3, 2008
(d) Officers and employees of public and private
ATTY. MANUEL J. LASERNA, JR., petitioner offices. - Officers and employees of public and
vs. private offices, whether domestic or overseas, shall
DANGEROUS DRUGS BOARD and PHILIPPINE be subjected to undergo a random drug test as
DRUG ENFORCEMENT AGENCY, respondents. contained in the company's work rules and
regulations, x x x for purposes of reducing the risk
x - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - x in the workplace. Any officer or employee found
positive for use of dangerous drugs shall be dealt
G.R. No. 161658 November 3, 2008 with administratively which shall be a ground for
suspension or termination, subject to the provisions
AQUILINO Q. PIMENTEL, JR., petitioner of Article 282 of the Labor Code and pertinent
vs. provisions of the Civil Service Law;
COMMISSION ON ELECTIONS, respondents.
xxxx
DECISION
(f) All persons charged before the prosecutor's
VELASCO, JR., J.: office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6)
In these kindred petitions, the constitutionality of years and one (1) day shall undergo a mandatory
Section 36 of Republic Act No. (RA) 9165, drug test;
otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, insofar as it requires mandatory (g) All candidates for public office whether
drug testing of candidates for public office, students appointed or elected both in the national or local
of secondary and tertiary schools, officers and government shall undergo a mandatory drug test.
employees of public and private offices, and
persons charged before the prosecutor's office with In addition to the above stated penalties in this
certain offenses, among other personalities, is put Section, those found to be positive for dangerous
in issue. drugs use shall be subject to the provisions of
Section 15 of this Act.
As far as pertinent, the challenged section reads as
follows: G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v.
Commission on Elections)
SEC. 36. Authorized Drug Testing. - Authorized
drug testing shall be done by any government

On December 23, 2003, the Commission on
Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the
mandatory drug testing of candidates for public
office in connection with the May 10, 2004
synchronized national and local elections. The
pertinent portions of the said resolution read as
follows:
WHEREAS, Section 36 (g) of Republic Act No.
9165 provides:
SEC. 36. Authorized Drug Testing. - x x x
xxxx
(g) All candidates for public office x x x both in the
national or local government shall undergo a
mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987
Constitution provides that public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility,
integrity, loyalty and efficiency;
WHEREAS, by requiring candidates to undergo
mandatory drug test, the public will know the quality
of candidates they are electing and they will be
assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would
be elected x x x.
NOW THEREFORE, The [COMELEC], pursuant to
the authority vested in it under the Constitution,
Batas Pambansa Blg. 881 (Omnibus Election
Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby
promulgates, the following rules and regulations on
the conduct of mandatory drug testing to
candidates for public office[:]
SECTION 1. Coverage. - All candidates for public
office, both national and local, in the May 10, 2004
Synchronized National and Local Elections shall
undergo mandatory drug test in government
forensic laboratories or any drug testing
laboratories monitored and accredited by the
Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug
certificates filed with their respective offices, the
CONSTI LAW II ACJUCO 70
Comelec Offices and employees concerned shall
submit to the Law Department two (2) separate lists
of candidates. The first list shall consist of those
candidates who complied with the mandatory drug
test while the second list shall consist of those
candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of
candidates. - Before the start of the campaign
period, the [COMELEC] shall prepare two separate
lists of candidates. The first list shall consist of
those candidates who complied with the mandatory
drug test while the second list shall consist of those
candidates who failed to comply with said drug test.
xxx
SEC. 5. Effect of failure to undergo mandatory drug
test and file drug test certificate. - No person
elected to any public office shall enter upon the
duties of his office until he has undergone
mandatory drug test and filed with the offices
enumerated under Section 2 hereof the drug test
certificate herein required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the
Republic and a candidate for re - election in the
May 10, 2004 elections,1 filed a Petition for
Certiorari and Prohibition under Rule 65. In it, he
seeks (1) to nullify Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 dated December
23, 2003 for being unconstitutional in that they
impose a qualification for candidates for senators in
addition to those already provided for in the 1987
Constitution; and (2) to enjoin the COMELEC from
implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec.
3, Article VI of the Constitution, which states:
SECTION 3. No person shall be a Senator unless
he is a natural - born citizen of the Philippines, and,
on the day of the election, is at least thirty - five
years of age, able to read and write, a registered
voter, and a resident of the Philippines for not less
than two years immediately preceding the day of
the election.
According to Pimentel, the Constitution only
prescribes a maximum of five (5) qualifications for
one to be a candidate for, elected to, and be a
member of the Senate. He says that both the
Congress and COMELEC, by requiring, via RA
9165 and Resolution No. 6486, a senatorial
aspirant, among other candidates, to undergo a

mandatory drug test, create an additional
qualification that all candidates for senator must
first be certified as drug free. He adds that there is
no provision in the Constitution authorizing the
Congress or COMELEC to expand the qualification
requirements of candidates for senator.
G.R. No. 157870 (Social Justice Society v.
Dangerous
Drugs Board and Philippine Drug Enforcement
Agency)
In its Petition for Prohibition under Rule 65,
petitioner Social Justice Society (SJS), a registered
political party, seeks to prohibit the Dangerous
Drugs Board (DDB) and the Philippine Drug
Enforcement Agency (PDEA) from enforcing
paragraphs (c), (d), (f), and (g) of Sec. 36 of RA
9165 on the ground that they are constitutionally
infirm. For one, the provisions constitute undue
delegation of legislative power when they give
unbridled discretion to schools and employers to
determine the manner of drug testing. For another,
the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student
or an employee deemed undesirable. And for a
third, a person's constitutional right against
unreasonable searches is also breached by said
provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v.
Dangerous
Drugs Board and Philippine Drug Enforcement
Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen
and taxpayer, also seeks in his Petition for
Certiorari and Prohibition under Rule 65 that Sec.
36(c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional
right to privacy, the right against unreasonable
search and seizure, and the right against self -
incrimination, and for being contrary to the due
process and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the
cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and
Laserna failed to allege any incident amounting to a
violation of the constitutional rights mentioned in
their separate petitions.2
CONSTI LAW II ACJUCO 71
It is basic that the power of judicial review can only
be exercised in connection with a bona fide
controversy which involves the statute sought to be
reviewed.3 But even with the presence of an actual
case or controversy, the Court may refuse to
exercise judicial review unless the constitutional
question is brought before it by a party having the
requisite standing to challenge it.4 To have
standing, one must establish that he or she has
suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the
challenged action; and the injury is likely to be
redressed by a favorable action.5
The rule on standing, however, is a matter of
procedure; hence, it can be relaxed for non -
traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest
so requires, such as when the matter is of
transcendental importance, of overarching
significance to society, or of paramount public
interest.6 There is no doubt that Pimentel, as
senator of the Philippines and candidate for the
May 10, 2004 elections, possesses the requisite
standing since he has substantial interests in the
subject matter of the petition, among other
preliminary considerations. Regarding SJS and
Laserna, this Court is wont to relax the rule on
locus standi owing primarily to the transcendental
importance and the paramount public interest
involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 impose an additional
qualification for candidates for senator? Corollarily,
can Congress enact a law prescribing qualifications
for candidates for senator in addition to those laid
down by the Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36,
RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right
against unreasonable searches and seizure, and
the equal protection clause? Or do they constitute
undue delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and

COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for
senator. He points out that, subject to the
provisions on nuisance candidates, a candidate for
senator needs only to meet the qualifications laid
down in Sec. 3, Art. VI of the Constitution, to wit: (1)
citizenship, (2) voter registration, (3) literacy, (4)
age, and (5) residency. Beyond these stated
qualification requirements, candidates for senator
need not possess any other qualification to run for
senator and be voted upon and elected as member
of the Senate. The Congress cannot validly amend
or otherwise modify these qualification standards,
as it cannot disregard, evade, or weaken the force
of a constitutional mandate,7 or alter or enlarge the
Constitution.
Pimentel's contention is well - taken. Accordingly,
Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law
or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has
no effect. The Constitution is the basic law to which
all laws must conform; no act shall be valid if it
conflicts with the Constitution.8 In the discharge of
their defined functions, the three departments of
government have no choice but to yield obedience
to the commands of the Constitution. Whatever
limits it imposes must be observed.9
Congress' inherent legislative powers, broad as
they may be, are subject to certain limitations. As
early as 1927, in Government v. Springer, the Court
has defined, in the abstract, the limits on legislative
power in the following wise:
Someone has said that the powers of the legislative
department of the Government, like the boundaries
of the ocean, are unlimited. In constitutional
governments, however, as well as governments
acting under delegated authority, the powers of
each of the departments x x x are limited and
confined within the four walls of the constitution or
the charter, and each department can only exercise
such powers as are necessarily implied from the
given powers. The Constitution is the shore of
legislative authority against which the waves of
legislative enactment may dash, but over which it
cannot leap.10
CONSTI LAW II ACJUCO 72
Thus, legislative power remains limited in the sense
that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of
the power itself and the allowable subjects of
legislation.11 The substantive constitutional
limitations are chiefly found in the Bill of Rights12
and other provisions, such as Sec. 3, Art. VI of the
Constitution prescribing the qualifications of
candidates for senators.
In the same vein, the COMELEC cannot, in the
guise of enforcing and administering election laws
or promulgating rules and regulations to implement
Sec. 36(g), validly impose qualifications on
candidates for senator in addition to what the
Constitution prescribes. If Congress cannot require
a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the
democratic process of election should not be
defeated by unwarranted impositions of
requirement not otherwise specified in the
Constitution.13
Sec. 36(g) of RA 9165, as sought to be
implemented by the assailed COMELEC resolution,
effectively enlarges the qualification requirements
enumerated in the Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36(g)
unmistakably requires a candidate for senator to be
certified illegal - drug clean, obviously as a pre -
condition to the validity of a certificate of candidacy
for senator or, with like effect, a condition sine qua
non to be voted upon and, if proper, be proclaimed
as senator - elect. The COMELEC resolution
completes the chain with the proviso that "[n]o
person elected to any public office shall enter upon
the duties of his office until he has undergone
mandatory drug test." Viewed, therefore, in its
proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another
qualification layer to what the 1987 Constitution, at
the minimum, requires for membership in the
Senate. Whether or not the drug - free bar set up
under the challenged provision is to be hurdled
before or after election is really of no moment, as
getting elected would be of little value if one cannot
assume office for non - compliance with the drug -
testing requirement.
It may of course be argued, in defense of the
validity of Sec. 36(g) of RA 9165, that the provision
does not expressly state that non - compliance with
the drug test imposition is a disqualifying factor or

would work to nullify a certificate of candidacy. This
argument may be accorded plausibility if the drug
test requirement is optional. But the particular
section of the law, without exception, made drug -
testing on those covered mandatory, necessarily
suggesting that the obstinate ones shall have to
suffer the adverse consequences for not adhering
to the statutory command. And since the provision
deals with candidates for public office, it stands to
reason that the adverse consequence adverted to
can only refer to and revolve around the election
and the assumption of public office of the
candidates. Any other construal would reduce the
mandatory nature of Sec. 36(g) of RA 9165 into a
pure jargon without meaning and effect
whatsoever.
While it is anti - climactic to state it at this juncture,
COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to
cover only the May 10, 2004 synchronized
elections and the candidates running in that
electoral event. Nonetheless, to obviate repetition,
the Court deems it appropriate to review and rule,
as it hereby rules, on its validity as an implementing
issuance.
It ought to be made abundantly clear, however, that
the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional
provision defining the qualification or eligibility
requirements for one aspiring to run for and serve
as senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA
9165)
The drug test prescribed under Sec. 36(c), (d), and
(f) of RA 9165 for secondary and tertiary level
students and public and private employees, while
mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal
drug and safeguard in the process "the well being
of [the] citizenry, particularly the youth, from the
harmful effects of dangerous drugs." This statutory
purpose, per the policy - declaration portion of the
law, can be achieved via the pursuit by the state of
"an intensive and unrelenting campaign against the
trafficking and use of dangerous drugs x x x
through an integrated system of planning,
implementation and enforcement of anti - drug
abuse policies, programs and projects."14 The
primary legislative intent is not criminal prosecution,
CONSTI LAW II ACJUCO 73
as those found positive for illegal drug use as a
result of this random testing are not necessarily
treated as criminals. They may even be exempt
from criminal liability should the illegal drug user
consent to undergo rehabilitation. Secs. 54 and 55
of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug
Dependent to Confinement, Treatment and
Rehabilitation. - A drug dependent or any person
who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close
relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug
dependency. Upon such application, the Board
shall bring forth the matter to the Court which shall
order that the applicant be examined for drug
dependency. If the examination x x x results in the
certification that the applicant is a drug dependent,
he/she shall be ordered by the Court to undergo
treatment and rehabilitation in a Center designated
by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability
Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission
program, who is finally discharged from
confinement, shall be exempt from the criminal
liability under Section 15 of this Act subject to the
following conditions:
xxxx
School children, the US Supreme Court noted, are
most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous
systems of the young are more critically impaired
by intoxicants and are more inclined to drug
dependency. Their recovery is also at a
depressingly low rate.15
The right to privacy has been accorded recognition
in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and
seizure16 under Sec. 2, Art. III17 of the
Constitution. But while the right to privacy has long
come into its own, this case appears to be the first
time that the validity of a state - decreed search or
intrusion through the medium of mandatory random
drug testing among students and employees is, in
this jurisdiction, made the focal point. Thus, the

issue tendered in these proceedings is veritably
one of first impression.
US jurisprudence is, however, a rich source of
persuasive jurisprudence. With respect to random
drug testing among school children, we turn to the
teachings of Vernonia School District 47J v. Acton
(Vernonia) and Board of Education of Independent
School District No. 92 of Pottawatomie County, et
al. v. Earls, et al. (Board of Education),18 both fairly
pertinent US Supreme Court - decided cases
involving the constitutionality of governmental
search.
In Vernonia, school administrators in Vernonia,
Oregon wanted to address the drug menace in their
respective institutions following the discovery of
frequent drug use by school athletes. After
consultation with the parents, they required random
urinalysis drug testing for the school's athletes.
James Acton, a high school student, was denied
participation in the football program after he refused
to undertake the urinalysis drug testing. Acton
forthwith sued, claiming that the school's drug
testing policy violated, inter alia, the Fourth
Amendment19 of the US Constitution.
The US Supreme Court, in fashioning a solution to
the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over
their students; (2) school children, while not
shedding their constitutional rights at the school
gate, have less privacy rights; (3) athletes have
less privacy rights than non - athletes since the
former observe communal undress before and after
sports events; (4) by joining the sports activity, the
athletes voluntarily subjected themselves to a
higher degree of school supervision and regulation;
(5) requiring urine samples does not invade a
student's privacy since a student need not undress
for this kind of drug testing; and (6) there is need
for the drug testing because of the dangerous
effects of illegal drugs on the young. The US
Supreme Court held that the policy constituted
reasonable search under the Fourth20 and 14th
Amendments and declared the random drug -
testing policy constitutional.
In Board of Education, the Board of Education of a
school in Tecumseh, Oklahoma required a drug
test for high school students desiring to join extra -
curricular activities. Lindsay Earls, a member of the
show choir, marching band, and academic team
declined to undergo a drug test and averred that
CONSTI LAW II ACJUCO 74
the drug - testing policy made to apply to non -
athletes violated the Fourth and 14th Amendments.
As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before
their peers in locker rooms, non - athletes are
entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the
constitutionality of drug testing even among non -
athletes on the basis of the school's custodial
responsibility and authority. In so ruling, said court
made no distinction between a non - athlete and an
athlete. It ratiocinated that schools and teachers act
in place of the parents with a similar interest and
duty of safeguarding the health of the students. And
in holding that the school could implement its
random drug - testing policy, the Court hinted that
such a test was a kind of search in which even a
reasonable parent might need to engage.
In sum, what can reasonably be deduced from the
above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco
parentis with respect to their students; (2) minor
students have contextually fewer rights than an
adult, and are subject to the custody and
supervision of their parents, guardians, and
schools; (3) schools, acting in loco parentis, have a
duty to safeguard the health and well - being of
their students and may adopt such measures as
may reasonably be necessary to discharge such
duty; and (4) schools have the right to impose
conditions on applicants for admission that are fair,
just, and non-discriminatory.
Guided by Vernonia and Board of Education, the
Court is of the view and so holds that the provisions
of RA 9165 requiring mandatory, random, and
suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for
admission, compliance with reasonable school
rules and regulations and policies. To be sure, the
right to enroll is not absolute; it is subject to fair,
reasonable, and equitable requirements.
The Court can take judicial notice of the
proliferation of prohibited drugs in the country that
threatens the well - being of the people,21
particularly the youth and school children who
usually end up as victims. Accordingly, and until a
more effective method is conceptualized and put in
motion, a random drug testing of students in
secondary and tertiary schools is not only

acceptable but may even be necessary if the safety
and interest of the student population, doubtless a
legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia,
"[d]eterring drug use by our Nation's schoolchildren
is as important as enhancing efficient enforcement
of the Nation's laws against the importation of
drugs"; the necessity for the State to act is
magnified by the fact that the effects of a drug -
infested school are visited not just upon the users,
but upon the entire student body and faculty.22
Needless to stress, the random testing scheme
provided under the law argues against the idea that
the testing aims to incriminate unsuspecting
individual students.
Just as in the case of secondary and tertiary level
students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and
employees of public and private offices is
justifiable, albeit not exactly for the same reason.
The Court notes in this regard that petitioner SJS,
other than saying that "subjecting almost everybody
to drug testing, without probable cause, is
unreasonable, an unwarranted intrusion of the
individual right to privacy,"23 has failed to show
how the mandatory, random, and suspicionless
drug testing under Sec. 36(c) and (d) of RA 9165
violates the right to privacy and constitutes unlawful
and/or unconsented search under Art. III, Secs. 1
and 2 of the Constitution.24 Petitioner Laserna's
lament is just as simplistic, sweeping, and
gratuitous and does not merit serious
consideration. Consider what he wrote without
elaboration:
The US Supreme Court and US Circuit Courts of
Appeals have made various rulings on the
constitutionality of mandatory drug tests in the
school and the workplaces. The US courts have
been consistent in their rulings that the mandatory
drug tests violate a citizen's constitutional right to
privacy and right against unreasonable search and
seizure. They are quoted extensively
hereinbelow.25
The essence of privacy is the right to be left
alone.26 In context, the right to privacy means the
right to be free from unwarranted exploitation of
one's person or from intrusion into one's private
activities in such a way as to cause humiliation to a
person's ordinary sensibilities. 27 And while there
has been general agreement as to the basic
function of the guarantee against unwarranted
CONSTI LAW II ACJUCO 75
search, "translation of the abstract prohibition
against ‘unreasonable searches and seizures' into
workable broad guidelines for the decision of
particular cases is a difficult task," to borrow from
C. Camara v. Municipal Court.28 Authorities are
agreed though that the right to privacy yields to
certain paramount rights of the public and defers to
the state's exercise of police power.29
As the warrantless clause of Sec. 2, Art III of the
Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of
a government search or intrusion.30 And whether a
search at issue hews to the reasonableness
standard is judged by the balancing of the
government - mandated intrusion on the individual's
privacy interest against the promotion of some
compelling state interest.31 In the criminal context,
reasonableness requires showing of probable
cause to be personally determined by a judge.
Given that the drug - testing policy for employees--
and students for that matter--under RA 9165 is in
the nature of administrative search needing what
was referred to in Vernonia as "swift and informal
disciplinary procedures," the probable - cause
standard is not required or even practicable. Be
that as it may, the review should focus on the
reasonableness of the challenged administrative
search in question.
The first factor to consider in the matter of
reasonableness is the nature of the privacy interest
upon which the drug testing, which effects a search
within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or
workplace serves as the backdrop for the analysis
of the privacy expectation of the employees and the
reasonableness of drug testing requirement. The
employees' privacy interest in an office is to a large
extent circumscribed by the company's work
policies, the collective bargaining agreement, if any,
entered into by management and the bargaining
unit, and the inherent right of the employer to
maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of
the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the
search or intrusion clearly set forth, or, as
formulated in Ople v. Torres, is the enabling law

authorizing a search "narrowly drawn" or "narrowly
focused"?32
The poser should be answered in the affirmative.
For one, Sec. 36 of RA 9165 and its implementing
rules and regulations (IRR), as couched, contain
provisions specifically directed towards preventing
a situation that would unduly embarrass the
employees or place them under a humiliating
experience. While every officer and employee in a
private establishment is under the law deemed
forewarned that he or she may be a possible
subject of a drug test, nobody is really singled out
in advance for drug testing. The goal is to
discourage drug use by not telling in advance
anyone when and who is to be tested. And as may
be observed, Sec. 36(d) of RA 9165 itself
prescribes what, in Ople, is a narrowing ingredient
by providing that the employees concerned shall be
subjected to "random drug test as contained in the
company's work rules and regulations x x x for
purposes of reducing the risk in the work place."
For another, the random drug testing shall be
undertaken under conditions calculated to protect
as much as possible the employee's privacy and
dignity. As to the mechanics of the test, the law
specifies that the procedure shall employ two
testing methods, i.e., the screening test and the
confirmatory test, doubtless to ensure as much as
possible the trustworthiness of the results. But the
more important consideration lies in the fact that
the test shall be conducted by trained professionals
in access - controlled laboratories monitored by the
Department of Health (DOH) to safeguard against
results tampering and to ensure an accurate chain
of custody.33 In addition, the IRR issued by the
DOH provides that access to the drug results shall
be on the "need to know" basis;34 that the "drug
test result and the records shall be [kept]
confidential subject to the usual accepted practices
to protect the confidentiality of the test results."35
Notably, RA 9165 does not oblige the employer
concerned to report to the prosecuting agencies
any information or evidence relating to the violation
of the Comprehensive Dangerous Drugs Act
received as a result of the operation of the drug
testing. All told, therefore, the intrusion into the
employees' privacy, under RA 9165, is
accompanied by proper safeguards, particularly
against embarrassing leakages of test results, and
is relatively minimal.
CONSTI LAW II ACJUCO 76
To reiterate, RA 9165 was enacted as a measure to
stamp out illegal drug in the country and thus
protect the well - being of the citizens, especially
the youth, from the deleterious effects of dangerous
drugs. The law intends to achieve this through the
medium, among others, of promoting and resolutely
pursuing a national drug abuse policy in the
workplace via a mandatory random drug test.36 To
the Court, the need for drug testing to at least
minimize illegal drug use is substantial enough to
override the individual's privacy interest under the
premises. The Court can consider that the illegal
drug menace cuts across gender, age group, and
social - economic lines. And it may not be amiss to
state that the sale, manufacture, or trafficking of
illegal drugs, with their ready market, would be an
investor's dream were it not for the illegal and
immoral components of any of such activities. The
drug problem has hardly abated since the martial
law public execution of a notorious drug trafficker.
The state can no longer assume a laid back stance
with respect to this modern - day scourge. Drug
enforcement agencies perceive a mandatory
random drug test to be an effective way of
preventing and deterring drug use among
employees in private offices, the threat of detection
by random testing being higher than other modes.
The Court holds that the chosen method is a
reasonable and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the
reduced expectation of privacy on the part of the
employees, the compelling state concern likely to
be met by the search, and the well - defined limits
set forth in the law to properly guide authorities in
the conduct of the random testing, we hold that the
challenged drug test requirement is, under the
limited context of the case, reasonable and, ergo,
constitutional.
Like their counterparts in the private sector,
government officials and employees also labor
under reasonable supervision and restrictions
imposed by the Civil Service law and other laws on
public officers, all enacted to promote a high
standard of ethics in the public service.37 And if RA
9165 passes the norm of reasonableness for
private employees, the more reason that it should
pass the test for civil servants, who, by
constitutional command, are required to be
accountable at all times to the people and to serve
them with utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA
9165 is objectionable on the ground of undue
delegation of power hardly commends itself for
concurrence. Contrary to its position, the provision
in question is not so extensively drawn as to give
unbridled options to schools and employers to
determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of
secondary and tertiary schools and
officers/employees of public/private offices should
be conducted. It enumerates the persons who shall
undergo drug testing. In the case of students, the
testing shall be in accordance with the school rules
as contained in the student handbook and with
notice to parents. On the part of
officers/employees, the testing shall take into
account the company's work rules. In either case,
the random procedure shall be observed, meaning
that the persons to be subjected to drug test shall
be picked by chance or in an unplanned way. And
in all cases, safeguards against misusing and
compromising the confidentiality of the test results
are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges
the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government,
Department of Education, and Department of Labor
and Employment, among other agencies, the IRR
necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug
testing scheme shall always be subject to the IRR
of RA 9165. It is, therefore, incorrect to say that
schools and employers have unchecked discretion
to determine how often, under what conditions, and
where the drug tests shall be conducted.
The validity of delegating legislative power is now a
quiet area in the constitutional landscape.39 In the
face of the increasing complexity of the task of the
government and the increasing inability of the
legislature to cope directly with the many problems
demanding its attention, resort to delegation of
power, or entrusting to administrative agencies the
power of subordinate legislation, has become
imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
Unlike the situation covered by Sec. 36(c) and (d)
of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of
crimes. In the case of students, the constitutional
CONSTI LAW II ACJUCO 77
viability of the mandatory, random, and
suspicionless drug testing for students emanates
primarily from the waiver by the students of their
right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons
to the parental authority of school authorities. In the
case of private and public employees, the
constitutional soundness of the mandatory,
random, and suspicionless drug testing proceeds
from the reasonableness of the drug test policy and
requirement.
We find the situation entirely different in the case of
persons charged before the public prosecutor's
office with criminal offenses punishable with six (6)
years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are
"randomness" and "suspicionless." In the case of
persons charged with a crime before the
prosecutor's office, a mandatory drug testing can
never be random or suspicionless. The ideas of
randomness and being suspicionless are
antithetical to their being made defendants in a
criminal complaint. They are not randomly picked;
neither are they beyond suspicion. When persons
suspected of committing a crime are charged, they
are singled out and are impleaded against their will.
The persons thus charged, by the bare fact of being
haled before the prosecutor's office and peaceably
submitting themselves to drug testing, if that be the
case, do not necessarily consent to the procedure,
let alone waive their right to privacy.40 To impose
mandatory drug testing on the accused is a blatant
attempt to harness a medical test as a tool for
criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case
would violate a persons' right to privacy guaranteed
under Sec. 2, Art. III of the Constitution. Worse still,
the accused persons are veritably forced to
incriminate themselves.
WHEREFORE, the Court resolves to GRANT the
petition in G.R. No. 161658 and declares Sec.
36(g) of RA 9165 and COMELEC Resolution No.
6486 as UNCONSTITUTIONAL; and to
PARTIALLY GRANT the petition in G.R. Nos.
157870 and 158633 by declaring Sec. 36(c) and (d)
of RA 9165 CONSTITUTIONAL, but declaring its
Sec. 36(f) UNCONSTITUTIONAL. All concerned
agencies are, accordingly, permanently enjoined
from implementing Sec. 36(f) and (g) of RA 9165.
No costs.
SO ORDERED.

G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS.
MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T.
ESCUDERO, and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute,
since participation in society is an equally powerful
desire. Thus each individual is continually engaged
in a personal adjustment process in which he
CONSTI LAW II ACJUCO 78
balances the desire for privacy with the desire for
disclosure and communicateacher at STC’s high
school department, learned from her students that
some seniors at STC posted pictures online,
depicting themselves from the waist up, dressed
only in brassieres. Escudero then asked her
students if they knew who the girls in the photos
are. In turn, they readily identified Julia, Julienne,
and Chloe Lourdes Taboada (Chloe), among
others.
Using STC’s computers, Escudero’s students
logged in to their respective personal Facebook
accounts and showed her photos of the identified
students, which include: (a) Julia and Julienne
drinking hard liquor and smoking cigarettes inside a
bar; and (b) Julia and Julienne along the streets of
Cebu wearing articles of clothing that show virtually
the entirety of their black brassieres. What is more,
Escudero’s students claimed that there were times
when access to or the availability of the identified
students’ photos was not confined to the girls’
Facebook friends,4 but were, in fact, viewable by
any Facebook user.5
Upon discovery, Escudero reported the matter and,
through one of her student’s Facebook page,
showed the photosto Kristine Rose Tigol (Tigol),
STC’s Discipline-in-Charge, for appropriate action.
Thereafter, following an investigation, STC found
the identified students to have deported themselves
in a manner proscribed by the school’s Student
Handbook, to wit:
1. Possession of alcoholic drinks outside the school
campus;
2. Engaging in immoral, indecent, obscene or lewd
acts;
3. Smoking and drinking alcoholicbeverages in
public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour;
depicts obscenity; contains sexually suggestive
messages, language or symbols; and 6. Posing
and uploading pictures on the Internet that entail
ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the
other students in the pictures in question, reported,
as required, to the office of Sr. Celeste Ma.

Purisima Pe (Sr. Purisima), STC’s high school
principal and ICM6 Directress. They claimed that
during the meeting, they were castigated and
verbally abused by the STC officials present in the
conference, including Assistant Principal Mussolini
S. Yap (Yap), Roswinda Jumiller, and Tigol. What
is more, Sr. Purisima informed their parents the
following day that, as part of their penalty, they are
barred from joining the commencement exercises
scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012,
Angela’s mother, Dr. Armenia M. Tan (Tan), filed a
Petition for Injunction and Damages before the
RTC of Cebu City against STC, et al., docketed as
Civil Case No. CEB-38594.7 In it, Tan prayed that
defendants therein be enjoined from implementing
the sanction that precluded Angela from joining the
commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares
(Vivares), the mother of Julia, joined the fray as an
intervenor. On March 28, 2012, defendants inCivil
Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in
issue as annexes. That same day, the RTC issued
a temporary restraining order (TRO) allowing the
students to attend the graduation ceremony, to
which STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC,
nevertheless, barred the sanctioned students from
participating in the graduation rites, arguing that, on
the date of the commencement exercises, its
adverted motion for reconsideration on the
issuance ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a
Petition for the Issuance of a Writ of Habeas Data,
docketed as SP. Proc. No. 19251-CEB8 on the
basis of the following considerations:
1. The photos of their children in their
undergarments (e.g., bra) were taken for posterity
before they changed into their swimsuits on the
occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook
accounts was set at "Friends Only." They, thus,
have a reasonable expectation of privacy which
must be respected.
3. Respondents, being involved in the field of
education, knew or ought to have known of laws
CONSTI LAW II ACJUCO 79
that safeguard the right to privacy. Corollarily,
respondents knew or ought to have known that the
girls, whose privacy has been invaded, are the
victims in this case, and not the offenders. Worse,
after viewing the photos, the minors were called
"immoral" and were punished outright;
4. The photos accessed belong to the girls and,
thus, cannot be used and reproduced without their
consent. Escudero, however, violated their rights by
saving digital copies of the photos and by
subsequently showing them to STC’s officials.
Thus, the Facebook accounts of petitioners’
children were intruded upon;
5. The intrusion into the Facebook accounts, as
well as the copying of information, data, and digital
images happened at STC’s Computer Laboratory;
and
6. All the data and digital images that were
extracted were boldly broadcasted by respondents
through their memorandum submitted to the RTC in
connection with Civil Case No. CEB-38594. To
petitioners, the interplay of the foregoing constitutes
an invasion of their children’s privacy and, thus,
prayed that: (a) a writ of habeas databe issued; (b)
respondents be ordered to surrender and deposit
with the court all soft and printed copies of the
subjectdata before or at the preliminary hearing;
and (c) after trial, judgment be rendered declaring
all information, data, and digital images accessed,
saved or stored, reproduced, spread and used, to
have been illegally obtained inviolation of the
children’s right to privacy.
Finding the petition sufficient in form and
substance, the RTC, through an Order dated July
5, 2012, issued the writ of habeas data. Through
the same Order, herein respondents were directed
to file their verified written return, together with the
supporting affidavits, within five (5) working days
from service of the writ.
In time, respondents complied with the RTC’s
directive and filed their verified written return, laying
down the following grounds for the denial of the
petition, viz: (a) petitioners are not the proper
parties to file the petition; (b) petitioners are
engaging in forum shopping; (c) the instant case is
not one where a writ of habeas data may issue;and
(d) there can be no violation of their right to privacy
as there is no reasonable expectation of privacy on
Facebook.

Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision
dismissing the petition for habeas data. The
dispositive portion of the Decision pertinently
states:
WHEREFORE, in view of the foregoing premises,
the Petition is hereby DISMISSED.
The parties and media must observe the
aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the
existence of an actual or threatened violation of the
minors’ right to privacy, one of the preconditions for
the issuance of the writ of habeas data. Moreover,
the court a quoheld that the photos, having been
uploaded on Facebook without restrictions as to
who may view them, lost their privacy in some way.
Besides, the RTC noted, STC gathered the
photographs through legal means and for a legal
purpose, that is, the implementation of the school’s
policies and rules on discipline.
Not satisfied with the outcome, petitioners now
come before this Court pursuant to Section 19 of
the Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is
whether or not a writ of habeas datashould be
issued given the factual milieu. Crucial in resolving
the controversy, however, is the pivotal point of
whether or not there was indeed an actual or
threatened violation of the right to privacy in the life,
liberty, or security of the minors involved in this
case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the
Writ of Habeas Data
The writ of habeas datais a remedy available to any
person whose right to privacy in life, liberty or
CONSTI LAW II ACJUCO 80
security is violated or threatened by an unlawful act
or omission of a public official or employee, or of a
private individual or entity engaged in the gathering,
collecting or storing of data or information regarding
the person, family, home and correspondence of
the aggrieved party.11 It is an independent and
summary remedy designed to protect the image,
privacy, honor, information, and freedom of
information of an individual, and to provide a forum
to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s
right to control information regarding oneself,
particularly in instances in which such information is
being collected through unlawful means in order to
achieve unlawful ends.12
In developing the writ of habeas data, the Court
aimed to protect an individual’s right to
informational privacy, among others. A comparative
law scholar has, in fact, defined habeas dataas "a
procedure designed to safeguard individual
freedom from abuse in the information age."13 The
writ, however, will not issue on the basis merely of
an alleged unauthorized access to information
about a person.Availment of the writ requires the
existence of a nexus between the right to privacy
on the one hand, and the right to life, liberty or
security on the other.14 Thus, the existence of a
person’s right to informational privacy and a
showing, at least by substantial evidence, of an
actual or threatened violation of the right to privacy
in life, liberty or security of the victim are
indispensable before the privilege of the writ may
be extended.15
Without an actionable entitlement in the first place
to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the
perspective of the case at bar,this requisite begs
this question: given the nature of an online social
network (OSN)––(1) that it facilitates and promotes
real-time interaction among millions, if not billions,
of users, sans the spatial barriers,16 bridging the
gap created by physical space; and (2) that any
information uploaded in OSNs leavesan indelible
trace in the provider’s databases, which are outside
the control of the end-users––is there a right to
informational privacy in OSN activities of its users?
Before addressing this point, We must first resolve
the procedural issues in this case.
a. The writ of habeas data is not only confined to
cases of extralegal killings and enforced
disappearances

Contrary to respondents’ submission, the Writ of
Habeas Datawas not enacted solely for the
purpose of complementing the Writ of Amparoin
cases of extralegal killings and enforced
disappearances.
Section 2 of the Rule on the Writ of Habeas Data
provides:
Sec. 2. Who May File. – Any aggrieved party may
file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil
degreeof consanguinity or affinity, in default of
those mentioned in the preceding paragraph.
(emphasis supplied)
Had the framers of the Rule intended to narrow the
operation of the writ only to cases of extralegal
killings or enforced disappearances, the above
underscored portion of Section 2, reflecting a
variance of habeas data situations, would not have
been made.
Habeas data, to stress, was designed "to safeguard
individual freedom from abuse in the information
age."17 As such, it is erroneous to limit its
applicability to extralegal killings and enforced
disappearances only. In fact, the annotations to the
Rule preparedby the Committee on the Revision of
the Rules of Court, after explaining that the Writ of
Habeas Data complements the Writ of Amparo,
pointed out that:
The writ of habeas data, however, can be availed of
as an independent remedy to enforce one’s right to
privacy, more specifically the right to informational
privacy. The remedies against the violation of such
right can include the updating, rectification,
suppression or destruction of the database or
information or files in possession or in control of
respondents.18 (emphasis Ours) Clearly then, the
privilege of the Writ of Habeas Datamay also be
availed of in cases outside of extralegal killings and
enforced disappearances.
CONSTI LAW II ACJUCO 81
b. Meaning of "engaged" in the gathering, collecting
or storing of data or information
Respondents’ contention that the habeas data writ
may not issue against STC, it not being an entity
engaged in the gathering, collecting or storing of
data or information regarding the person, family,
home and correspondence of the aggrieved party,
while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that
the habeas data protection shall be available only
against abuses of a person or entity engaged in the
businessof gathering, storing, and collecting of
data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas
datais a remedy available to any person whose
right to privacy in life, liberty or security is violated
or threatened by an unlawful act or omission of a
public official or employee, or of a private individual
or entity engaged in the gathering, collecting or
storing of data or information regarding the person,
family, home and correspondence of the aggrieved
party. (emphasis Ours)
The provision, when taken in its proper context, as
a whole, irresistibly conveys the idea that habeas
data is a protection against unlawful acts or
omissions of public officials and of private
individuals or entities engaged in gathering,
collecting, or storing data about the aggrieved party
and his or her correspondences, or about his or her
family. Such individual or entity need not be in the
business of collecting or storing data.
To "engage" in something is different from
undertaking a business endeavour. To "engage"
means "to do or take part in something."19 It does
not necessarily mean that the activity must be done
in pursuit of a business. What matters is that the
person or entity must be gathering, collecting or
storing said data or information about the aggrieved
party or his or her family. Whether such
undertaking carries the element of regularity, as
when one pursues a business, and is in the nature
of a personal endeavour, for any other reason or
even for no reason at all, is immaterial and such will
not prevent the writ from getting to said person or
entity.
To agree with respondents’ above argument, would
mean unduly limiting the reach of the writ to a very
small group, i.e., private persons and entities

whose business is data gathering and storage, and
in the process decreasing the effectiveness of the
writ asan instrument designed to protect a right
which is easily violated in view of rapid
advancements in the information and
communications technology––a right which a great
majority of the users of technology themselves are
not capable of protecting.
Having resolved the procedural aspect of the case,
We now proceed to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly
evolved, with technological advancements having
an influential part therein. This evolution was briefly
recounted in former Chief Justice Reynato S.
Puno’s speech, The Common Right to Privacy,20
where he explained the three strands of the right to
privacy, viz: (1) locational or situational privacy;21
(2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case
at bar is the right to informational privacy––usually
defined as the right of individuals to control
information about themselves.23
With the availability of numerous avenues for
information gathering and data sharing nowadays,
not to mention each system’s inherent vulnerability
to attacks and intrusions, there is more reason that
every individual’s right to control said flow of
information should be protected and that each
individual should have at least a reasonable
expectation of privacy in cyberspace. Several
commentators regarding privacy and social
networking sites, however, all agree that given the
millions of OSN users, "[i]n this [Social Networking]
environment, privacy is no longer grounded in
reasonable expectations, but rather in some
theoretical protocol better known as wishful
thinking."24
It is due to this notion that the Court saw the
pressing need to provide for judicial remedies that
would allow a summary hearing of the unlawful use
of data or information and to remedy possible
violations of the right to privacy.25 In the same
vein, the South African High Court, in its Decision in
the landmark case, H v. W,26 promulgated on
January30, 2013, recognized that "[t]he law has to
take into account the changing realities not only
CONSTI LAW II ACJUCO 82
technologically but also socially or else it will lose
credibility in the eyes of the people. x x x It is
imperative that the courts respond appropriately to
changing times, acting cautiously and with
wisdom." Consistent with this, the Court, by
developing what may be viewed as the Philippine
model of the writ of habeas data, in effect,
recognized that, generally speaking, having an
expectation of informational privacy is not
necessarily incompatible with engaging in
cyberspace activities, including those that occur in
OSNs.
The question now though is up to whatextent is the
right to privacy protected in OSNs? Bear in mind
that informational privacy involves personal
information. At the same time, the very purpose of
OSNs is socializing––sharing a myriad of
information,27 some of which would have otherwise
remained personal.
b. Facebook’s Privacy Tools: a response to the
clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give
users the ability to interact and to stay connected to
other members of the same or different social
media platform through the sharing of statuses,
photos, videos, among others, depending on the
services provided by the site. It is akin to having a
room filled with millions of personal bulletin boards
or "walls," the contents of which are under the
control of each and every user. In his or her bulletin
board, a user/owner can post anything––from text,
to pictures, to music and videos––access to which
would depend on whether he or she allows one,
some or all of the other users to see his or her
posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of
various social networking sites, includingthe one
involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers,
people use "to stay connected with friends and
family, to discover what’s going on in the world, and
to share and express what matters to them."28
Facebook connections are established through the
process of "friending" another user. By sending a
"friend request," the user invites another to connect
their accounts so that they can view any and all
"Public" and "Friends Only" posts of the other.Once
the request is accepted, the link is established and
both users are permitted to view the other user’s
"Public" or "Friends Only" posts, among others.

"Friending," therefore, allows the user to form or
maintain one-to-one relationships with other users,
whereby the user gives his or her "Facebook friend"
access to his or her profile and shares certain
information to the latter.29
To address concerns about privacy,30 but without
defeating its purpose, Facebook was armed with
different privacy tools designed to regulate the
accessibility of a user’s profile31 as well as
information uploaded by the user. In H v. W,32 the
South Gauteng High Court recognized this ability of
the users to "customize their privacy settings," but
did so with this caveat: "Facebook states in its
policies that, although it makes every effort to
protect a user’s information, these privacy settings
are not foolproof."33
For instance, a Facebook user canregulate the
visibility and accessibility of digital images(photos),
posted on his or her personal bulletin or "wall,"
except for the user’sprofile picture and ID, by
selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user
can view the photo;
(b) Friends of Friends - only the user’s Facebook
friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can
view the photo;
(c) Custom - the photo is made visible only to
particular friends and/or networks of the Facebook
user; and
(d) Only Me - the digital image can be viewed only
by the user.
The foregoing are privacy tools, available to
Facebook users, designed to set up barriers to
broaden or limit the visibility of his or her specific
profile content, statuses, and photos, among
others, from another user’s point of view. In other
words, Facebook extends its users an avenue to
make the availability of their Facebook activities
reflect their choice as to "when and to what extent
to disclose facts about [themselves] – and to put
others in the position of receiving such
confidences."34 Ideally, the selected setting will be
based on one’s desire to interact with others,
coupled with the opposing need to withhold certain
information as well as to regulate the spreading of
CONSTI LAW II ACJUCO 83
his or her personal information. Needless to say, as
the privacy setting becomes more limiting, fewer
Facebook users can view that user’s particular
post.
STC did not violate petitioners’ daughters’ right to
privacy
Without these privacy settings, respondents’
contention that there is no reasonable expectation
of privacy in Facebook would, in context, be
correct. However, such is not the case. It is through
the availability of said privacy tools that many OSN
users are said to have a subjective expectation that
only those to whomthey grant access to their profile
will view the information they post or upload
thereto.35
This, however, does not mean thatany Facebook
user automatically has a protected expectation of
privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in
his or her OSN activity, it is first necessary that said
user, in this case the children of
petitioners,manifest the intention to keepcertain
posts private, through the employment of measures
to prevent access thereto or to limit its visibility.36
And this intention can materialize in cyberspace
through the utilization of the OSN’s privacy tools. In
other words, utilization of these privacy tools is the
manifestation,in cyber world, of the user’s
invocation of his or her right to informational
privacy.37
Therefore, a Facebook user who opts to make use
of a privacy tool to grant or deny access to his or
her post orprofile detail should not be denied the
informational privacy right which necessarily
accompanies said choice.38 Otherwise, using
these privacy tools would be a feckless exercise,
such that if, for instance, a user uploads a photo or
any personal information to his or her Facebook
page and sets its privacy level at "Only Me" or a
custom list so that only the user or a chosen few
can view it, said photo would still be deemed public
by the courts as if the user never chose to limit the
photo’s visibility and accessibility. Such position, if
adopted, will not only strip these privacy tools of
their function but it would also disregard the very
intention of the user to keep said photo or
information within the confines of his or her private
space.

We must now determine the extent that the images
in question were visible to other Facebook users
and whether the disclosure was confidential in
nature. In other words, did the minors limit the
disclosure of the photos such that the images were
kept within their zones of privacy? This
determination is necessary in resolving the issue of
whether the minors carved out a zone of privacy
when the photos were uploaded to Facebook so
that the images will be protected against
unauthorized access and disclosure.
Petitioners, in support of their thesis about their
children’s privacy right being violated, insist that
Escudero intruded upon their children’s Facebook
accounts, downloaded copies ofthe pictures and
showed said photos to Tigol. To them, this was a
breach of the minors’ privacy since their Facebook
accounts, allegedly, were under "very private" or
"Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their
children’s disclosure was only limited since their
profiles were not open to public viewing. Therefore,
according to them, people who are not their
Facebook friends, including respondents, are
barred from accessing said post without their
knowledge and consent. Aspetitioner’s children
testified, it was Angelawho uploaded the
subjectphotos which were only viewable by the five
of them,40 although who these five are do not
appear on the records.
Escudero, on the other hand, stated in her
affidavit41 that "my students showed me some
pictures of girls cladin brassieres. This student [sic]
of mine informed me that these are senior high
school [students] of STC, who are their friends in
[F]acebook. x x x They then said [that] there are still
many other photos posted on the Facebook
accounts of these girls. At the computer lab, these
students then logged into their Facebook account
[sic], and accessed from there the various
photographs x x x. They even told me that there
had been times when these photos were ‘public’
i.e., not confined to their friends in Facebook."
In this regard, We cannot give muchweight to the
minors’ testimonies for one key reason: failure to
question the students’ act of showing the photos to
Tigol disproves their allegation that the photos were
viewable only by the five of them. Without any
evidence to corroborate their statement that the
images were visible only to the five of them, and
without their challenging Escudero’s claim that the
CONSTI LAW II ACJUCO 84
other students were able to view the photos, their
statements are, at best, self-serving, thus deserving
scant consideration.42
It is well to note that not one of petitioners disputed
Escudero’s sworn account that her students, who
are the minors’ Facebook "friends," showed her the
photos using their own Facebook accounts. This
only goes to show that no special means to be able
to viewthe allegedly private posts were ever
resorted to by Escudero’s students,43 and that it is
reasonable to assume, therefore, that the photos
were, in reality, viewable either by (1) their
Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook
posts is"Public," it can be surmised that the
photographs in question were viewable to everyone
on Facebook, absent any proof that petitioners’
children positively limited the disclosure of the
photograph. If suchwere the case, they cannot
invoke the protection attached to the right to
informational privacy. The ensuing pronouncement
in US v. Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet
precisely intends to forsake and renounce all
privacy rights to such imagery, particularly under
circumstances suchas here, where the Defendant
did not employ protective measures or devices that
would have controlled access to the Web page or
the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he
more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent
to the public at large inthe chat room or e-mail that
is forwarded from correspondent to correspondent
loses any semblance of privacy."
That the photos are viewable by "friends only" does
not necessarily bolster the petitioners’ contention.
In this regard, the cyber community is agreed that
the digital images under this setting still remain to
be outside the confines of the zones of privacy in
view of the following:
(1) Facebook "allows the world to be more open
and connected by giving its users the tools to
interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend"
other users who are total strangers;48

(3) The sheer number of "Friends" one user has,
usually by the hundreds; and
(4) A user’s Facebook friend can "share"49 the
former’s post, or "tag"50 others who are not
Facebook friends with the former, despite its being
visible only tohis or her own Facebook friends.
It is well to emphasize at this point that setting a
post’s or profile detail’s privacy to "Friends" is no
assurance that it can no longer be viewed by
another user who is not Facebook friends with the
source of the content. The user’s own Facebook
friend can share said content or tag his or her own
Facebook friend thereto, regardless of whether the
user tagged by the latter is Facebook friends or not
with the former. Also, when the post is shared or
when a person is tagged, the respective Facebook
friends of the person who shared the post or who
was tagged can view the post, the privacy setting of
which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends
and B has 200. A and B are not Facebook friends.
If C, A’s Facebook friend, tags B in A’s post, which
is set at "Friends," the initial audience of 100 (A’s
own Facebook friends) is dramatically increased to
300 (A’s 100 friends plus B’s 200 friends or the
public, depending upon B’s privacy setting). As a
result, the audience who can view the post is
effectively expanded––and to a very large extent.
This, along with its other features and uses, is
confirmation of Facebook’s proclivity towards user
interaction and socialization rather than seclusion
or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that
OSNs have facilitated their users’ self-tribute,
thereby resulting into the "democratization of
fame."51 Thus, it is suggested, that a profile, or
even a post, with visibility set at "Friends Only"
cannot easily, more so automatically, be said to be
"very private," contrary to petitioners’ argument.
As applied, even assuming that the photos in issue
are visible only to the sanctioned students’
Facebook friends, respondent STC can hardly be
taken to task for the perceived privacy invasion
since it was the minors’ Facebook friends who
showed the pictures to Tigol. Respondents were
mere recipients of what were posted. They did not
resort to any unlawful means of gathering the
information as it was voluntarily given to them by
persons who had legitimate access to the said
CONSTI LAW II ACJUCO 85
posts. Clearly, the fault, if any, lies with the friends
of the minors. Curiously enough, however, neither
the minors nor their parents imputed any violation
of privacy against the students who showed the
images to Escudero.
Furthermore, petitioners failed to prove their
contention that respondents reproduced and
broadcasted the photographs. In fact, what
petitioners attributed to respondents as an act of
offensive disclosure was no more than the actuality
that respondents appended said photographs in
their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.52
These are not tantamount to a violation of the
minor’s informational privacy rights, contrary to
petitioners’ assertion.
In sum, there can be no quibbling that the images
in question, or to be more precise, the photos of
minor students scantily clad, are personal in nature,
likely to affect, if indiscriminately circulated, the
reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any
evidence, other than bare assertions that they
utilized Facebook’s privacy settings to make the
photos visible only to them or to a select few.
Without proof that they placed the photographs
subject of this case within the ambit of their
protected zone of privacy, they cannot now insist
that they have an expectation of privacy with
respect to the photographs in question.
Had it been proved that the access tothe pictures
posted were limited to the original uploader,
through the "Me Only" privacy setting, or that the
user’s contact list has been screened to limit
access to a select few, through the "Custom"
setting, the result may have been different, for in
such instances, the intention to limit access to the
particular post, instead of being broadcasted to the
public at large or all the user’s friends en masse,
becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one
between your children’s ears."53 This means that
self-regulation on the part of OSN users and
internet consumers ingeneral is the best means of
avoiding privacy rights violations.54 As a
cyberspace communitymember, one has to be
proactive in protecting his or her own privacy.55 It
is in this regard that many OSN users, especially
 CONSTI LAW II ACJUCO 86

minors, fail.Responsible social networking or
observance of the "netiquettes"56 on the part of
teenagers has been the concern of many due to the
widespreadnotion that teenagers can sometimes go
too far since they generally lack the people skills or
general wisdom to conduct themselves sensibly in
a public forum.57
Respondent STC is clearly aware of this and
incorporating lessons on good cyber citizenship in
its curriculum to educate its students on proper
online conduct may be mosttimely. Too, it is not
only STC but a number of schools and
organizations have already deemed it important to
include digital literacy and good cyber citizenshipin
their respective programs and curricula in view of
the risks that the children are exposed to every time
they participate in online activities.58 Furthermore,
considering the complexity of the cyber world and
its pervasiveness,as well as the dangers that these
children are wittingly or unwittingly exposed to in
view of their unsupervised activities in cyberspace,
the participation of the parents in disciplining and
educating their children about being a good digital
citizen is encouraged by these institutions and
organizations. In fact, it is believed that "to limit
such risks, there’s no substitute for parental
involvement and supervision."59
As such, STC cannot be faulted for being steadfast
in its duty of teaching its students to beresponsible
in their dealings and activities in cyberspace,
particularly in OSNs, whenit enforced the
disciplinary actions specified in the Student
Handbook, absenta showing that, in the process, it
violated the students’ rights.
It is, thus, incumbent upon internet users to
exercise due diligence in their online dealings and
activities and must not be negligent in protecting
their rights. Equity serves the vigilant. Demanding
relief from the courts, as here, requires that
claimants themselves take utmost care in
safeguarding a right which they allege to have been
violated. These are indispensable. We cannot
afford protection to persons if they themselves did
nothing to place the matter within the confines of
their private zone. OSN users must be mindful
enough to learn the use of privacy tools, to use
them if they desire to keep the information private,
and to keep track of changes in the available
privacy settings, such as those of Facebook,
especially because Facebook is notorious for
changing these settings and the site's layout often.
In finding that respondent STC and its officials did
not violate the minors' privacy rights, We find no
cogent reason to disturb the findings and case
disposition of the court a quo.
In light of the foregoing, the Court need not belabor
the other assigned errors.
WHEREFORE, premises considered, the petition is
hereby DENIED. The Decision dated July 27, 2012
of the Regional Trial Court, Branch 14 in Cebu City
in SP. Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

OSN users should be aware of the risks that they

expose themselves to whenever they engage
incyberspace activities.1âwphi1 Accordingly, they
should be cautious enough to control their privacy
and to exercise sound discretion regarding how
much information about themselves they are willing
to give up. Internet consumers ought to be aware
that, by entering or uploading any kind of data or
information online, they are automatically and
inevitably making it permanently available online,
the perpetuation of which is outside the ambit of
their control. Furthermore, and more importantly,
information, otherwise private, voluntarily
surrendered by them can be opened, read, or
copied by third parties who may or may not be
allowed access to such.
 CONSTI LAW II ACJUCO 87

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the
Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS
COMMISSION (NTC), respondents.

CARPIO, J.:

The Case

This is a petition for the writs of certiorari and

prohibition to set aside "acts, issuances, and
orders" of respondents Secretary of Justice Raul M.
Gonzalez (respondent Gonzales) and the National
Telecommunications Commission (NTC),
particularly an NTC "press release" dated 11 June
2005, warning radio and television stations against
airing taped conversations allegedly between
President Gloria Macapagal-Arroyo and
Commission on Elections (COMELEC)
Commissioner Virgilio Garcillano (Garcillano)1
under pain of suspension or revocation of their
airwave licenses.

The Facts

On 24 June 2004, Congress, acting as national

board of canvassers, proclaimed President Arroyo
winner in the 2004 presidential elections.2
President Arroyo received a total of 12,905,808
votes, 1,123,576 more than the votes of her
nearest rival, Fernando Poe, Jr. Sometime before 6
June 2005, the radio station dzMM aired the Garci
Tapes where the parties to the conversation
discussed "rigging" the results of the 2004 elections
to favor President Arroyo. On 6 June 2005,
Presidential spokesperson Ignacio Bunye (Bunye)
held a press conference in Malacañang Palace,
where he played before the presidential press
corps two compact disc recordings of conversations
between a woman and a man. Bunye identified the
woman in both recordings as President Arroyo but
claimed that the contents of the second compact
disc had been "spliced" to make it appear that
President Arroyo was talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and

stated that the woman's voice in the compact discs
was not President Arroyo’s after all.3 Meanwhile,
FREEDOM OF SPEECH other individuals went public, claiming possession
of the genuine copy of the Garci Tapes.4
G.R. No. 168338 February 15, 2008 Respondent Gonzalez ordered the National Bureau

of Investigation to investigate media organizations
which aired the Garci Tapes for possible violation of
Republic Act No. 4200 or the Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release
warning radio and television stations that airing the
Garci Tapes is a "cause for the suspension,
revocation and/or cancellation of the licenses or
authorizations" issued to them.5 On 14 June 2005,
NTC officers met with officers of the broadcasters
group, Kapisanan ng mga Broadcasters sa
Pilipinas (KBP), to dispel fears of censorship. The
NTC and KBP issued a joint press statement
expressing commitment to press freedom.6
On 21 June 2005, petitioner Francisco I. Chavez
(petitioner), as citizen, filed this petition to nullify the
"acts, issuances, and orders" of the NTC and
respondent Gonzalez (respondents) on the
following grounds: (1) respondents’ conduct
violated freedom of expression and the right of the
people to information on matters of public concern
under Section 7, Article III of the Constitution, and
(2) the NTC acted ultra vires when it warned radio
and television stations against airing the Garci
Tapes.
In their Comment to the petition, respondents
raised threshold objections that (1) petitioner has
no standing to litigate and (2) the petition fails to
meet the case or controversy requirement in
constitutional adjudication. On the merits,
respondents claim that (1) the NTC's press release
of 11 June 2005 is a mere "fair warning," not
censorship, cautioning radio and television
networks on the lack of authentication of the Garci
Tapes and of the consequences of airing false or
fraudulent material, and (2) the NTC did not act
ultra vires in issuing the warning to radio and
television stations.
In his Reply, petitioner belied respondents' claim on
his lack of standing to litigate, contending that his
status as a citizen asserting the enforcement of a
public right vested him with sufficient interest to
maintain this suit. Petitioner also contests
respondents' claim that the NTC press release of
11 June 2005 is a mere warning as it already
prejudged the Garci Tapes as inauthentic and
violative of the Anti-Wiretapping Law, making it a
"cleverly disguised x x x gag order."
ISSUE
CONSTI LAW II ACJUCO 88
The principal issue for resolution is whether the
NTC warning embodied in the press release of 11
June 2005 constitutes an impermissible prior
restraint on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC
warning, embodied in its press release dated 11
June 2005, an unconstitutional prior restraint on
protected expression, and (3) enjoin the NTC from
enforcing the same.
1. Standing to File Petition
Petitioner has standing to file this petition. When
the issue involves freedom of expression, as in the
present case, any citizen has the right to bring suit
to question the constitutionality of a government
action in violation of freedom of expression,
whether or not the government action is directed at
such citizen. The government action may chill into
silence those to whom the action is directed. Any
citizen must be allowed to take up the cudgels for
those who have been cowed into inaction because
freedom of expression is a vital public right that
must be defended by everyone and anyone.
Freedom of expression, being fundamental to the
preservation of a free, open and democratic
society, is of transcendental importance that must
be defended by every patriotic citizen at the earliest
opportunity. We have held that any concerned
citizen has standing to raise an issue of
transcendental importance to the nation,7 and
petitioner in this present petition raises such issue.
2. Overview of Freedom of Expression, Prior
Restraint and Subsequent Punishment
Freedom of expression is the foundation of a free,
open and democratic society. Freedom of
expression is an indispensable condition8 to the
exercise of almost all other civil and political rights.
No society can remain free, open and democratic
without freedom of expression. Freedom of
expression guarantees full, spirited, and even
contentious discussion of all social, economic and
political issues. To survive, a free and democratic
society must zealously safeguard freedom of
expression.
Freedom of expression allows citizens to expose
and check abuses of public officials. Freedom of
expression allows citizens to make informed
choices of candidates for public office. Freedom of

expression crystallizes important public policy
issues, and allows citizens to participate in the
discussion and resolution of such issues. Freedom
of expression allows the competition of ideas, the
clash of claims and counterclaims, from which the
truth will likely emerge. Freedom of expression
allows the airing of social grievances, mitigating
sudden eruptions of violence from marginalized
groups who otherwise would not be heard by
government. Freedom of expression provides a
civilized way of engagement among political,
ideological, religious or ethnic opponents for if one
cannot use his tongue to argue, he might use his
fist instead.
Freedom of expression is the freedom to
disseminate ideas and beliefs, whether competing,
conforming or otherwise. It is the freedom to
express to others what one likes or dislikes, as it is
the freedom of others to express to one and all
what they favor or disfavor. It is the free expression
for the ideas we love, as well as the free expression
for the ideas we hate.9 Indeed, the function of
freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it
induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even
stirs people to anger. Speech is often provocative
and challenging. It may strike at prejudices and
preconceptions and have profound unsettling
effects as it presses for acceptance of an idea.10
Section 4, Article III of the Constitution prohibits the
enactment of any law curtailing freedom of
expression:
No law shall be passed abridging the freedom of
speech, of expression, or the press, or the right of
the people peaceably to assemble and petition the
government for redress of grievances.
Thus, the rule is that expression is not subject to
any prior restraint or censorship because the
Constitution commands that freedom of expression
shall not be abridged. Over time, however, courts
have carved out narrow and well defined
exceptions to this rule out of necessity.
The exceptions, when expression may be subject
to prior restraint, apply in this jurisdiction to only
four categories of expression, namely:
pornography,11 false or misleading
advertisement,12 advocacy of imminent lawless
CONSTI LAW II ACJUCO 89
action,13 and danger to national security.14 All
other expression is not subject to prior restraint. As
stated in Turner Broadcasting System v. Federal
Communication Commission, "[T]he First
Amendment (Free Speech Clause), subject only to
narrow and well understood exceptions, does not
countenance governmental control over the content
of messages expressed by private individuals."15
Expression not subject to prior restraint is protected
expression or high-value expression. Any content-
based prior restraint on protected expression is
unconstitutional without exception. A protected
expression means what it says – it is absolutely
protected from censorship. Thus, there can be no
prior restraint on public debates on the amendment
or repeal of existing laws, on the ratification of
treaties, on the imposition of new tax measures, or
on proposed amendments to the Constitution.
Prior restraint on expression is content-based if the
restraint is aimed at the message or idea of the
expression. Courts will subject to strict scrutiny
content-based restraint. If the content-based prior
restraint is directed at protected expression, courts
will strike down the restraint as unconstitutional
because there can be no content-based prior
restraint on protected expression. The analysis thus
turns on whether the prior restraint is content-
based, and if so, whether such restraint is directed
at protected expression, that is, those not falling
under any of the recognized categories of
unprotected expression.
If the prior restraint is not aimed at the message or
idea of the expression, it is content-neutral even if it
burdens expression. A content-neutral restraint is a
restraint which regulates the time, place or manner
of the expression in public places16 without any
restraint on the content of the expression. Courts
will subject content-neutral restraints to
intermediate scrutiny.17
An example of a content-neutral restraint is a
permit specifying the date, time and route of a rally
passing through busy public streets. A content-
neutral prior restraint on protected expression
which does not touch on the content of the
expression enjoys the presumption of validity and is
thus enforceable subject to appeal to the courts.18
Courts will uphold time, place or manner restraints
if they are content-neutral, narrowly tailored to
serve a significant government interest, and leave
open ample alternative channels of expression.19

In content-neutral prior restraint on protected
speech, there should be no prior restraint on the
content of the expression itself. Thus, submission
of movies or pre-taped television programs to a
government review board is constitutional only if
the review is for classification and not for censoring
any part of the content of the submitted
materials.20 However, failure to submit such
materials to the review board may be penalized
without regard to the content of the materials.21
The review board has no power to reject the airing
of the submitted materials. The review board’s
power is only to classify the materials, whether for
general patronage, for adults only, or for some
other classification. The power to classify
expressions applies only to movies and pre-taped
television programs22 but not to live television
programs. Any classification of live television
programs necessarily entails prior restraint on
expression.
Expression that may be subject to prior restraint is
unprotected expression or low-value expression. By
definition, prior restraint on unprotected expression
is content-based23 since the restraint is imposed
because of the content itself. In this jurisdiction,
there are currently only four categories of
unprotected expression that may be subject to prior
restraint. This Court recognized false or misleading
advertisement as unprotected expression only in
October 2007.24
Only unprotected expression may be subject to
prior restraint. However, any such prior restraint on
unprotected expression must hurdle a high barrier.
First, such prior restraint is presumed
unconstitutional. Second, the government bears a
heavy burden of proving the constitutionality of the
prior restraint.25
Courts will subject to strict scrutiny any government
action imposing prior restraint on unprotected
expression.26 The government action will be
sustained if there is a compelling State interest, and
prior restraint is necessary to protect such State
interest. In such a case, the prior restraint shall be
narrowly drawn - only to the extent necessary to
protect or attain the compelling State interest.
Prior restraint is a more severe restriction on
freedom of expression than subsequent
punishment. Although subsequent punishment also
deters expression, still the ideas are disseminated
CONSTI LAW II ACJUCO 90
to the public. Prior restraint prevents even the
dissemination of ideas to the public.
While there can be no prior restraint on protected
expression, such expression may be subject to
subsequent punishment,27 either civilly or
criminally. Thus, the publication of election surveys
cannot be subject to prior restraint,28 but an
aggrieved person can sue for redress of injury if the
survey turns out to be fabricated. Also, while Article
201 (2)(b)(3) of the Revised Penal Code punishing
"shows which offend any race or religion" cannot be
used to justify prior restraint on religious
expression, this provision can be invoked to justify
subsequent punishment of the perpetrator of such
offensive shows.29
Similarly, if the unprotected expression does not
warrant prior restraint, the same expression may
still be subject to subsequent punishment, civilly or
criminally. Libel falls under this class of unprotected
expression. However, if the expression cannot be
subject to the lesser restriction of subsequent
punishment, logically it cannot also be subject to
the more severe restriction of prior restraint. Thus,
since profane language or "hate speech" against a
religious minority is not subject to subsequent
punishment in this jurisdiction,30 such expression
cannot be subject to prior restraint.
If the unprotected expression warrants prior
restraint, necessarily the same expression is
subject to subsequent punishment. There must be
a law punishing criminally the unprotected
expression before prior restraint on such
expression can be justified. The legislature must
punish the unprotected expression because it
creates a substantive evil that the State must
prevent. Otherwise, there will be no legal basis for
imposing a prior restraint on such expression.
The prevailing test in this jurisdiction to determine
the constitutionality of government action imposing
prior restraint on three categories of unprotected
expression – pornography,31 advocacy of imminent
lawless action, and danger to national security - is
the clear and present danger test.32 The
expression restrained must present a clear and
present danger of bringing about a substantive evil
that the State has a right and duty to prevent, and
such danger must be grave and imminent.33
Prior restraint on unprotected expression takes
many forms - it may be a law, administrative

regulation, or impermissible pressures like threats
of revoking licenses or withholding of benefits.34
The impermissible pressures need not be
embodied in a government agency regulation, but
may emanate from policies, advisories or conduct
of officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a
warning by the NTC that the airing or broadcasting
of the Garci Tapes by radio and television stations
is a "cause for the suspension, revocation and/or
cancellation of the licenses or authorizations"
issued to radio and television stations. The NTC
warning, embodied in a press release, relies on two
grounds. First, the airing of the Garci Tapes "is a
continuing violation of the Anti-Wiretapping Law
and the conditions of the Provisional Authority
and/or Certificate of Authority issued to radio and
TV stations." Second, the Garci Tapes have not
been authenticated, and subsequent investigation
may establish that the tapes contain false
information or willful misrepresentation.
Specifically, the NTC press release contains the
following categorical warning:
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 networks owners/operators
that the conditions of the authorizations and permits
issued to them by Government like the Provisional
Authority and/or Certificate of Authority explicitly
provides that said companies shall not use its
stations for the broadcasting or telecasting of false
information or willful misrepresentation. Relative
thereto, it has come to the attention of the
Commission that certain personalities are in
possession of alleged taped conversation which
they claim, (sic) involve the President of the
Philippines and a Commissioner of the COMELEC
regarding their supposed violation of election laws.
These personalities have admitted that the taped
conversations are product 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, (sic) it is the position of the Commission
that the continuous airing or broadcast of the said
CONSTI LAW II ACJUCO 91
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. If it has been (sic)
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. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the
Garci Tapes constitutes unprotected expression
that may be subject to prior restraint. The NTC
does not specify what substantive evil the State
seeks to prevent in imposing prior restraint on the
airing of the Garci Tapes. The NTC does not claim
that the public airing of the Garci Tapes constitutes
a clear and present danger of a substantive evil, of
grave and imminent character, that the State has a
right and duty to prevent.
The NTC did not conduct any hearing in reaching
its conclusion that the airing of the Garci Tapes
constitutes a continuing violation of the Anti-
Wiretapping Law. At the time of issuance of the
NTC press release, and even up to now, the parties
to the conversations in the Garci Tapes have not
complained that the wire-tapping was without their
consent, an essential element for violation of the
Anti-Wiretapping Law.35 It was even the Office of
the President, through the Press Secretary, that
played and released to media the Garci Tapes
containing the alleged "spliced" conversation
between President Arroyo and Commissioner
Garcillano. There is also the issue of whether a
wireless cellular phone conversation is covered by
the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in
claiming that the airing of the Garci Tapes
constitutes a violation of the Anti-Wiretapping Law.
The radio and television stations were not even
given an opportunity to be heard by the NTC. The
NTC did not observe basic due process as
mandated in Ang Tibay v. Court of Industrial
Relations.36
The NTC claims that the Garci Tapes, "after a
prosecution or the appropriate investigation," may

constitute "false information and/or willful
misrepresentation." However, the NTC does not
claim that such possible false information or willful
misrepresentation constitutes misleading
commercial advertisement. In the United States,
false or deceptive commercial speech is
categorized as unprotected expression that may be
subject to prior restraint. Recently, this Court
upheld the constitutionality of Section 6 of the Milk
Code requiring the submission to a government
screening committee of advertising materials for
infant formula milk to prevent false or deceptive
claims to the public.37 There is, however, no claim
here by respondents that the Garci Tapes
constitute false or misleading commercial
advertisement.
The NTC concedes that the Garci Tapes have not
been authenticated as accurate or truthful. The
NTC also concedes that only "after a prosecution or
appropriate investigation" can it be established that
the Garci Tapes constitute "false information and/or
willful misrepresentation." Clearly, the NTC admits
that it does not even know if the Garci Tapes
contain false information or willful
misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci
Tapes is a content-based prior restraint because it
is directed at the message of the Garci Tapes. The
NTC’s claim that the Garci Tapes might contain
"false information and/or willful misrepresentation,"
and thus should not be publicly aired, is an
admission that the restraint is content-based.
5. Nature of Expression in the Present Case
The public airing of the Garci Tapes is a protected
expression because it does not fall under any of the
four existing categories of unprotected expression
recognized in this jurisdiction. The airing of the
Garci Tapes is essentially a political expression
because it exposes that a presidential candidate
had allegedly improper conversations with a
COMELEC Commissioner right after the close of
voting in the last presidential elections.
Obviously, the content of the Garci Tapes affects
gravely the sanctity of the ballot. Public discussion
on the sanctity of the ballot is indisputably a
protected expression that cannot be subject to prior
restraint. Public discussion on the credibility of the
CONSTI LAW II ACJUCO 92
electoral process is one of the highest political
expressions of any electorate, and thus deserves
the utmost protection. If ever there is a hierarchy of
protected expressions, political expression would
occupy the highest rank,38 and among different
kinds of political expression, the subject of fair and
honest elections would be at the top. In any event,
public discussion on all political issues should
always remain uninhibited, robust and wide open.
The rule, which recognizes no exception, is that
there can be no content-based prior restraint on
protected expression. On this ground alone, the
NTC press release is unconstitutional. Of course, if
the courts determine that the subject matter of a
wiretapping, illegal or not, endangers the security of
the State, the public airing of the tape becomes
unprotected expression that may be subject to prior
restraint. However, there is no claim here by
respondents that the subject matter of the Garci
Tapes involves national security and publicly airing
the tapes would endanger the security of the
State.39
The alleged violation of the Anti-Wiretapping Law is
not in itself a ground to impose a prior restraint on
the airing of the Garci Tapes because the
Constitution expressly prohibits the enactment of
any law, and that includes anti-wiretapping laws,
curtailing freedom of expression.40 The only
exceptions to this rule are the four recognized
categories of unprotected expression. However, the
content of the Garci Tapes does not fall under any
of these categories of unprotected expression.
The airing of the Garci Tapes does not violate the
right to privacy because the content of the Garci
Tapes is a matter of important public concern. The
Constitution guarantees the people’s right to
information on matters of public concern.41 The
remedy of any person aggrieved by the public
airing of the Garci Tapes is to file a complaint for
violation of the Anti-Wiretapping Law after the
commission of the crime. Subsequent punishment,
absent a lawful defense, is the remedy available in
case of violation of the Anti-Wiretapping Law.
The present case involves a prior restraint on
protected expression. Prior restraint on protected
expression differs significantly from subsequent
punishment of protected expression. While there
can be no prior restraint on protected expression,
there can be subsequent punishment for protected
expression under libel, tort or other laws. In the

present case, the NTC action seeks prior restraint
on the airing of the Garci Tapes, not punishment of
personnel of radio and television stations for actual
violation of the Anti-Wiretapping Law.
6. Only the Courts May Impose Content-Based
Prior Restraint
The NTC has no power to impose content-based
prior restraint on expression. The charter of the
NTC does not vest NTC with any content-based
censorship power over radio and television
stations.
In the present case, the airing of the Garci Tapes is
a protected expression that can never be subject to
prior restraint. However, even assuming for the
sake of argument that the airing of the Garci Tapes
constitutes unprotected expression, only the courts
have the power to adjudicate on the factual and
legal issue of whether the airing of the Garci Tapes
presents a clear and present danger of bringing
about a substantive evil that the State has a right
and duty to prevent, so as to justify the prior
restraint.
Any order imposing prior restraint on unprotected
expression requires prior adjudication by the courts
on whether the prior restraint is constitutional. This
is a necessary consequence from the presumption
of invalidity of any prior restraint on unprotected
expression. Unless ruled by the courts as a valid
prior restraint, government agencies cannot
implement outright such prior restraint because
such restraint is presumed unconstitutional at
inception.
As an agency that allocates frequencies or
airwaves, the NTC may regulate the bandwidth
position, transmitter wattage, and location of radio
and television stations, but not the content of the
broadcasts. Such content-neutral prior restraint
may make operating radio and television stations
more costly. However, such content-neutral
restraint does not restrict the content of the
broadcast.
7. Government Failed to Overcome Presumption of
Invalidity
Assuming that the airing of the Garci Tapes
constitutes unprotected expression, the NTC action
imposing prior restraint on the airing is presumed
unconstitutional. The Government bears a heavy
CONSTI LAW II ACJUCO 93
burden to prove that the NTC action is
constitutional. The Government has failed to meet
this burden.
In their Comment, respondents did not invoke any
compelling State interest to impose prior restraint
on the public airing of the Garci Tapes. The
respondents claim that they merely "fairly warned"
radio and television stations to observe the Anti-
Wiretapping Law and pertinent NTC circulars on
program standards. Respondents have not
explained how and why the observance by radio
and television stations of the Anti-Wiretapping Law
and pertinent NTC circulars constitutes a
compelling State interest justifying prior restraint on
the public airing of the Garci Tapes.
Violation of the Anti-Wiretapping Law, like the
violation of any criminal statute, can always be
subject to criminal prosecution after the violation is
committed. Respondents have not explained why
there is a need in the present case to impose prior
restraint just to prevent a possible future violation of
the Anti-Wiretapping Law. Respondents have not
explained how the violation of the Anti-Wiretapping
Law, or of the pertinent NTC circulars, can incite
imminent lawless behavior or endanger the security
of the State. To allow such restraint is to allow prior
restraint on all future broadcasts that may possibly
violate any of the existing criminal statutes. That
would be the dawn of sweeping and endless
censorship on broadcast media.
8. The NTC Warning is a Classic Form of Prior
Restraint
The NTC press release threatening to suspend or
cancel the airwave permits of radio and television
stations constitutes impermissible pressure
amounting to prior restraint on protected
expression. Whether the threat is made in an order,
regulation, advisory or press release, the chilling
effect is the same: the threat freezes radio and
television stations into deafening silence. Radio
and television stations that have invested
substantial sums in capital equipment and market
development suddenly face suspension or
cancellation of their permits. The NTC threat is thus
real and potent.
In Burgos v. Chief of Staff,42 this Court ruled that
the closure of the We Forum newspapers under a
general warrant "is in the nature of a previous
restraint or censorship abhorrent to the freedom of
 CONSTI LAW II ACJUCO 94

the press guaranteed under the fundamental law."
The NTC warning to radio and television stations
not to air the Garci Tapes or else their permits will
be suspended or cancelled has the same effect – a
prior restraint on constitutionally protected
expression.
In the recent case of David v. Macapagal-Arroyo,43
this Court declared unconstitutional government
threats to close down mass media establishments
that refused to comply with government prescribed
"standards" on news reporting following the
declaration of a State of National Emergency by
President Arroyo on 24 February 2006. The Court
described these threats in this manner:
before the American Declaration of Independence
in 1776, William Blackstone had already written in
his Commentaries on the Law of England, "The
liberty of the press x x x consists in laying no
previous restraints upon publication x x x."47
Although couched in a press release and not in an
administrative regulation, the NTC threat to
suspend or cancel permits remains real and
effective, for without airwaves or frequencies, radio
and television stations will fall silent and die. The
NTC press release does not seek to advance a
legitimate regulatory objective, but to suppress
through coercion information on a matter of vital
public concern.

Thereafter, a wave of warning[s] came from 9. Conclusion

government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such In sum, the NTC press release constitutes an
raid was "meant to show a 'strong presence,' to tell unconstitutional prior restraint on protected
media outlets not to connive or do anything that expression. There can be no content-based prior
would help the rebels in bringing down this restraint on protected expression. This rule has no
government." Director General Lomibao further exception.
stated that "if they do not follow the standards —
and the standards are if they would contribute to I therefore vote to (1) grant the petition, (2) declare
instability in the government, or if they do not the NTC warning, embodied in its press release
subscribe to what is in General Order No. 5 and dated 11 June 2005, an unconstitutional prior
Proc. No. 1017 — we will recommend a 'takeover.'" restraint on protected expression, and (3) enjoin the
National Telecommunications Commissioner NTC from enforcing the same.
Ronald Solis urged television and radio networks to
"cooperate" with the government for the duration of
the state of national emergency. He warned that his
agency will not hesitate to recommend the closure
of any broadcast outfit that violates rules set out for
media coverage during times when the national
security is threatened.44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as

impermissible restraint on freedom of expression.
The Court ruled that "the imposition of standards on
media or any form of prior restraint on the press, as
well as the warrantless search of the Tribune
offices and whimsical seizure of its articles for
publication and other materials, are declared
UNCONSTITUTIONAL."45

The history of press freedom has been a constant

struggle against the censor whose weapon is the
suspension or cancellation of licenses to publish or
broadcast. The NTC warning resurrects the
weapon of the censor. The NTC warning is a
classic form of prior restraint on protected
expression, which in the words of Near v.
Minnesota is "the essence of censorship."46 Long
 CONSTI LAW II ACJUCO 95

NEW YORK TIMES CO. V. SULLIVAN

376 U.S. 254 (1964)

Argued January 6, 1964

Decided March 9, 1964*

376 U.S. 254

CERTIORARI TO THE SUPREME COURT OF

ALABAMA

Syllabus

Respondent, an elected official in Montgomery,

Alabama, brought suit in a state court alleging that
he had been libeled by an advertisement in
corporate petitioner's newspaper, the text of which
appeared over the names of the four individual
petitioners and many others. The advertisement
included statements, some of which were false,
about police action allegedly directed against
students who participated in a civil rights
demonstration and against a leader of the civil
rights movement; respondent claimed the
statements referred to him because his duties
included supervision of the police department. The
trial judge instructed the jury that such statements
were "libelous per se," legal injury being implied
without proof of actual damages, and that, for the
purpose of compensatory damages, malice was
presumed, so that such damages could be
awarded against petitioners if the statements were
found to have been published by them and to have
related to respondent. As to punitive damages, the
judge instructed that mere negligence was not
evidence of actual malice, and would not justify an
award of punitive damages; he refused to instruct
that actual intent to harm or recklessness had to be
found before punitive damages could be awarded,
or that a verdict for respondent should differentiate
between compensatory and punitive damages. The
jury found for respondent, and the State Supreme
Court affirmed.

Held: A State cannot, under the First and
Fourteenth Amendments, award damages to a
public official for defamatory falsehood relating to
his official conduct unless he proves "actual malice"
-- that the statement was made with knowledge of
its falsity or with reckless disregard of whether it
was true or false. Pp. 376 U. S. 265-292.
(a) Application by state courts of a rule of law,
whether statutory or not, to award a judgment in a
civil action, is "state action" under the Fourteenth
Amendment. P. 376 U. S. 265.
(b) Expression does not lose constitutional
protection to which it would otherwise be entitled
because it appears in the form of a paid
advertisement.
(c) Factual error, content defamatory of official
reputation, or both, are insufficient to warrant an
award of damages for false statements unless
"actual malice" -- knowledge that statements are
false or in reckless disregard of the truth -- is
alleged and proved.
(d) State court judgment entered upon a general
verdict which does not differentiate between
punitive damages, as to which, under state law,
actual malice must be proved, and general
damages, as to which it is "presumed," precludes
any determination as to the basis of the verdict, and
requires reversal, where presumption of malice is
inconsistent with federal constitutional
requirements.
(e) The evidence was constitutionally insufficient to
support the judgment for respondent, since it failed
to support a finding that the statements were made
with actual malice or that they related to
respondent.
Reversed and remanded.
MR. JUSTICE BRENNAN delivered the opinion of
the Court.
We are required in this case to determine for the
first time the extent to which the constitutional
protections for speech and press limit a State's
power to award damages in a libel action brought
by a public official against critics of his official
conduct.
CONSTI LAW II ACJUCO 96
Respondent L. B. Sullivan is one of the three
elected Commissioners of the City of Montgomery,
Alabama. He testified that he was
"Commissioner of Public Affairs, and the duties are
supervision of the Police Department, Fire
Department, Department of Cemetery and
Department of Scales."
He brought this civil libel action against the four
individual petitioners, who are Negroes and
Alabama clergymen, and against petitioner the New
York Times Company, a New York corporation
which publishes the New York Times, a daily
newspaper. A jury in the Circuit Court of
Montgomery County awarded him damages of
$500,000, the full amount claimed, against all the
petitioners, and the Supreme Court of Alabama
affirmed.
Respondent's complaint alleged that he had been
libeled by statements in a full-page advertisement
that was carried in the New York Times on March
29, 1960. [Footnote 1] Entitled "Heed Their Rising
Voices," the advertisement began by stating that,
"As the whole world knows by now, thousands of
Southern Negro students are engaged in
widespread nonviolent demonstrations in positive
affirmation of the right to live in human dignity as
guaranteed by the U.S. Constitution and the Bill of
Rights."
It went on to charge that, "in their efforts to uphold
these guarantees, they are being met by an
unprecedented wave of terror by those who would
deny and negate that document which the whole
world looks upon as setting the pattern for modern
freedom. . . ."
Succeeding paragraphs purported to illustrate the
"wave of terror" by describing certain alleged
events. The text concluded with an appeal for funds
for three purposes: support of the student
movement, "the struggle for the right to vote," and
the legal defense of Dr. Martin Luther King, Jr.,
leader of the movement, against a perjury
indictment then pending in Montgomery.
The text appeared over the names of 64 persons,
many widely known for their activities in public
affairs, religion, trade unions, and the performing
arts. Below these names, and under a line reading
"We in the south who are struggling daily for dignity

and freedom warmly endorse this appeal,"
appeared the names of the four individual
petitioners and of 16 other persons, all but two of
whom were identified as clergymen in various
Southern cities. The advertisement was signed at
the bottom of the page by the "Committee to
Defend Martin Luther King and the Struggle for
Freedom in the South," and the officers of the
Committee were listed.
Of the 10 paragraphs of text in the advertisement,
the third and a portion of the sixth were the basis of
respondent's claim of libel. They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang 'My
Country, 'Tis of Thee' on the State Capitol steps,
their leaders were expelled from school, and
truckloads of police armed with shotguns and tear-
gas ringed the Alabama State College Campus.
When the entire student body protested to state
authorities by refusing to reregister, their dining hall
was padlocked in an attempt to starve them into
submission."
Sixth paragraph:
"Again and again, the Southern violators have
answered Dr. King's peaceful protests with
intimidation and violence. They have bombed his
home, almost killing his wife and child. They have
assaulted his person. They have arrested him
seven times -- for 'speeding,' 'loitering' and similar
'offenses.' And now they have charged him with
'perjury' -- a felony under which they could imprison
him for ten years. . . ."
Although neither of these statements mentions
respondent by name, he contended that the word
"police" in the third paragraph referred to him as the
Montgomery Commissioner who supervised the
Police Department, so that he was being accused
of "ringing" the campus with police. He further
claimed that the paragraph would be read as
imputing to the police, and hence to him, the
padlocking of the dining hall in order to starve the
students into submission. [Footnote 2] As to the
sixth paragraph, he contended that, since arrests
are ordinarily made by the police, the statement
"They have arrested [Dr. King] seven times" would
be read as referring to him; he further contended
that the "They" who did the arresting would be
equated with the "They" who committed the other
CONSTI LAW II ACJUCO 97
described acts and with the "Southern violators."
Thus, he argued, the paragraph would be read as
accusing the Montgomery police, and hence him, of
answering Dr. King's protests with "intimidation and
violence," bombing his home, assaulting his
person, and charging him with perjury. Respondent
and six other Montgomery residents testified that
they read some or all of the statements as referring
to him in his capacity as Commissioner.
It is uncontroverted that some of the statements
contained in the two paragraphs were not accurate
descriptions of events which occurred in
Montgomery. Although Negro students staged a
demonstration on the State Capitol steps, they
sang the National Anthem and not "My Country,
'Tis of Thee." Although nine students were expelled
by the State Board of Education, this was not for
leading the demonstration at the Capitol, but for
demanding service at a lunch counter in the
Montgomery County Courthouse on another day.
Not the entire student body, but most of it, had
protested the expulsion, not by refusing to register,
but by boycotting classes on a single day; virtually
all the students did register for the ensuing
semester. The campus dining hall was not
padlocked on any occasion, and the only students
who may have been barred from eating there were
the few who had neither signed a preregistration
application nor requested temporary meal tickets.
Although the police were deployed near the
campus in large numbers on three occasions, they
did not at any time "ring" the campus, and they
were not called to the campus in connection with
the demonstration on the State Capitol steps, as
the third paragraph implied. Dr. King had not been
arrested seven times, but only four, and although
he claimed to have been assaulted some years
earlier in connection with his arrest for loitering
outside a courtroom, one of the officers who made
the arrest denied that there was such an assault.
On the premise that the charges in the sixth
paragraph could be read as referring to him,
respondent was allowed to prove that he had not
participated in the events described. Although Dr.
King's home had, in fact, been bombed twice when
his wife and child were there, both of these
occasions antedated respondent's tenure as
Commissioner, and the police were not only not
implicated in the bombings, but had made every
effort to apprehend those who were. Three of Dr.
King's four arrests took place before respondent
became Commissioner. Although Dr. King had, in

fact, been indicted (he was subsequently acquitted)
on two counts of perjury, each of which carried a
possible five-year sentence, respondent had
nothing to do with procuring the indictment.
Respondent made no effort to prove that he
suffered actual pecuniary loss as a result of the
alleged libel. [Footnote 3] One of his witnesses, a
former employer, testified that, if he had believed
the statements, he doubted whether he "would
want to be associated with anybody who would be
a party to such things that are stated in that ad,"
and that he would not reemploy respondent if he
believed "that he allowed the Police Department to
do the things that the paper say he did." But neither
this witness nor any of the others testified that he
had actually believed the statements in their
supposed reference to respondent. The cost of the
advertisement was approximately $4800, and it
was published by the Times upon an order from a
New York advertising agency acting for the
signatory Committee. The agency submitted the
advertisement with a letter from A. Philip Randolph,
Chairman of the Committee, certifying that the
persons whose names appeared on the
advertisement had given their permission. Mr.
Randolph was known to the Times' Advertising
Acceptability Department as a responsible person,
and, in accepting the letter as sufficient proof of
authorization, it followed its established practice.
There was testimony that the copy of the
advertisement which accompanied the letter listed
only the 64 names appearing under the text, and
that the statement, "We in the south . . . warmly
endorse this appeal," and the list of names
thereunder, which included those of the individual
petitioners, were subsequently added when the first
proof of the advertisement was received. Each of
the individual petitioners testified that he had not
authorized the use of his name, and that he had
been unaware of its use until receipt of
respondent's demand for a retraction. The manager
of the Advertising Acceptability Department testified
that he had approved the advertisement for
publication because he knew nothing to cause him
to believe that anything in it was false, and because
it bore the endorsement of "a number of people
who are well known and whose reputation" he "had
no reason to question." Neither he nor anyone else
at the Times made an effort to confirm the accuracy
of the advertisement, either by checking it against
recent Times news stories relating to some of the
described events or by any other means.
CONSTI LAW II ACJUCO 98
Alabama law denies a public officer recovery of
punitive damages in a libel action brought on
account of a publication concerning his official
conduct unless he first makes a written demand for
a public retraction and the defendant fails or
refuses to comply. Alabama Code, Tit. 7, § 914.
Respondent served such a demand upon each of
the petitioners. None of the individual petitioners
responded to the demand, primarily because each
took the position that he had not authorized the use
of his name on the advertisement, and therefore
had not published the statements that respondent
alleged had libeled him. The Times did not publish
a retraction in response to the demand, but wrote
respondent a letter stating, among other things, that
"we . . . are somewhat puzzled as to how you think
the statements in any way reflect on you," and "you
might, if you desire, let us know in what respect you
claim that the statements in the advertisement
reflect on you." Respondent filed this suit a few
days later without answering the letter. The Times
did, however, subsequently publish a retraction of
the advertisement upon the demand of Governor
John Patterson of Alabama, who asserted that the
publication charged him with "grave misconduct
and . . . improper actions and omissions as
Governor of Alabama and Ex-Officio Chairman of
the State Board of Education of Alabama."
When asked to explain why there had been a
retraction for the Governor but not for respondent,
the Secretary of the Times testified:
"We did that because we didn't want anything that
was published by The Times to be a reflection on
the State of Alabama, and the Governor was, as far
as we could see, the embodiment of the State of
Alabama and the proper representative of the
State, and, furthermore, we had by that time
learned more of the actual facts which the and
purported to recite and, finally, the ad did refer to
the action of the State authorities and the Board of
Education, presumably of which the Governor is the
ex-officio chairman. . . ."
On the other hand, he testified that he did not think
that "any of the language in there referred to Mr.
Sullivan."
The trial judge submitted the case to the jury under
instructions that the statements in the
advertisement were "libelous per se," and were not
privileged, so that petitioners might be held liable if
the jury found that they had published the

advertisement and that the statements were made
"of and concerning" respondent. The jury was
instructed that, because the statements were
libelous per se, "the law . . . implies legal injury
from the bare fact of publication itself," "falsity and
malice are presumed," "general damages need not
be alleged or proved, but are presumed," and
"punitive damages may be awarded by the jury
even though the amount of actual damages is
neither found nor shown." An award of punitive
damages -- as distinguished from "general"
damages, which are compensatory in nature --
apparently requires proof of actual malice under
Alabama law, and the judge charged that "mere
negligence or carelessness is not evidence of
actual malice or malice in fact, and does not justify
an award of exemplary or punitive damages."
He refused to charge, however, that the jury must
be "convinced" of malice, in the sense of "actual
intent" to harm or "gross negligence and
recklessness," to make such an award, and he also
refused to require that a verdict for respondent
differentiate between compensatory and punitive
damages. The judge rejected petitioners'
contention that his rulings abridged the freedoms of
speech and of the press that are guaranteed by the
First and Fourteenth Amendments.
In affirming the judgment, the Supreme Court of
Alabama sustained the trial judge's rulings and
instructions in all respects. 273 Ala. 656, 144 So.2d
25. It held that, "where the words published tend to
injure a person libeled by them in his reputation,
profession, trade or business, or charge him with
an indictable offense, or tend to bring the individual
into public contempt," they are "libelous per se";
that "the matter complained of is, under the above
doctrine, libelous per se, if it was published of and
concerning the plaintiff", and that it was actionable
without "proof of pecuniary injury . . . . such injury
being implied." Id. at 673, 676, 144 So.2d at 37, 41.
It approved the trial court's ruling that the jury could
find the statements to have been made "of and
concerning" respondent, stating:
"We think it common knowledge that the average
person knows that municipal agents, such as police
and firemen, and others, are under the control and
direction of the city governing body, and, more
particularly, under the direction and control of a
single commissioner. In measuring the
performance or deficiencies of such groups, praise
CONSTI LAW II ACJUCO 99
or criticism is usually attached to the official in
complete control of the body."
Id. at 674-675, 144 So.2d at 39. In sustaining the
trial court's determination that the verdict was not
excessive, the court said that malice could be
inferred from the Times' "irresponsibility" in printing
the advertisement while "the Times, in its own files,
had articles already published which would have
demonstrated the falsity of the allegations in the
advertisement;"
from the Times' failure to retract for respondent
while retracting for the Governor, whereas the
falsity of some of the allegations was then known to
the Times and "the matter contained in the
advertisement was equally false as to both parties",
and from the testimony of the Times' Secretary
that, apart from the statement that the dining hall
was padlocked, he thought the two paragraphs
were "substantially correct." Id. at 686-687, 144
So.2d at 50-51. The court reaffirmed a statement in
an earlier opinion that "There is no legal measure
of damages in cases of this character." Id. at 686,
144 So.2d at 50. It rejected petitioners'
constitutional contentions with the brief statements
that "The First Amendment of the U.S. Constitution
does not protect libelous publications," and "The
Fourteenth Amendment is directed against State
action, and not private action." Id. at 676, 144
So.2d at 40.
Because of the importance of the constitutional
issues involved, we granted the separate petitions
for certiorari of the individual petitioners and of the
Times. 371 U.S. 946. We reverse the judgment. We
hold that the rule of law applied by the Alabama
courts is constitutionally deficient for failure to
provide the safeguards for freedom of speech and
of the press that are required by the First and
Fourteenth Amendments in a libel action brought by
a public official against critics of his official conduct.
[Footnote 4] We further hold that, under the proper
safeguards, the evidence presented in this case is
constitutionally insufficient to support the judgment
for respondent.
I
.
We may dispose at the outset of two grounds
asserted to insulate the judgment of the Alabama
courts from constitutional scrutiny. The first is the
proposition relied on by the State Supreme Court --
that "The Fourteenth Amendment is directed

against State action, and not private action." That
proposition has no application to this case.
Although this is a civil lawsuit between private
parties, the Alabama courts have applied a state
rule of law which petitioners claim to impose invalid
restrictions on their constitutional freedoms of
speech and press. It matters not that that law has
been applied in a civil action and that it is common
law only, though supplemented by statute. See,
e.g., Alabama Code, Tit. 7, §§ 908-917. The test is
not the form in which state power has been applied
but, whatever the form, whether such power has, in
fact, been exercised. See Ex parte Virginia, 100 U.
S. 339, 100 U. S. 346-347; American Federation of
Labor v. Swing.
The second contention is that the constitutional
guarantees of freedom of speech and of the press
are inapplicable here, at least so far as the Times is
concerned, because the allegedly libelous
statements were published as part of a paid,
"commercial" advertisement. The argument relies
on Valentine v. Chrestensen, 316 U. S. 52, where
the Court held that a city ordinance forbidding
street distribution of commercial and business
advertising matter did not abridge the First
Amendment freedoms, even as applied to a
handbill having a commercial message on one side
but a protest against certain official action, on the
other. The reliance is wholly misplaced. The Court
in Chrestensen reaffirmed the constitutional
protection for "the freedom of communicating
information and disseminating opinion"; its holding
was based upon the factual conclusions that the
handbill was "purely commercial advertising" and
that the protest against official action had been
added only to evade the ordinance.
The publication here was not a "commercial"
advertisement in the sense in which the word was
used in Chrestensen. It communicated information,
expressed opinion, recited grievances, protested
claimed abuses, and sought financial support on
behalf of a movement whose existence and
objectives are matters of the highest public interest
and concern. See NAACP v. Button, 371 U. S. 415,
371 U. S. 435. That the Times was paid for
publishing the advertisement is as immaterial in this
connection as is the fact that newspapers and
books are sold. Smith v. California, 361 U. S. 147,
361 U. S. 150; cf. Bantam Books, Inc., v. Sullivan,
372 U. S. 58, 372 U. S. 64, n. 6. Any other
conclusion would discourage newspapers from
carrying "editorial advertisements" of this type, and
CONSTI LAW II ACJUCO 100
so might shut off an important outlet for the
promulgation of information and ideas by persons
who do not themselves have access to publishing
facilities -- who wish to exercise their freedom of
speech even though they are not members of the
press. Cf. Lovell v. Griffin, 303 U. S. 444, 303 U. S.
452; Schneider v. State, 308 U. S. 147, 308 U. S.
164. The effect would be to shackle the First
Amendment in its attempt to secure "the widest
possible dissemination of information from diverse
and antagonistic sources." Associated Press v.
United States, 326 U. S. 1, 326 U. S. 20. To avoid
placing such a handicap upon the freedoms of
expression, we hold that, if the allegedly libelous
statements would otherwise be constitutionally
protected from the present judgment, they do not
forfeit that protection because they were published
in the form of a paid advertisement. [Footnote 5]
II
Under Alabama law, as applied in this case, a
publication is "libelous per se" if the words "tend to
injure a person . . . in his reputation" or to "bring
[him] into public contempt"; the trial court stated
that the standard was met if the words are such as
to "injure him in his public office, or impute
misconduct to him in his office, or want of official
integrity, or want of fidelity to a public trust. . . ."
The jury must find that the words were published
"of and concerning" the plaintiff, but, where the
plaintiff is a public official, his place in the
governmental hierarchy is sufficient evidence to
support a finding that his reputation has been
affected by statements that reflect upon the agency
of which he is in charge. Once "libel per se" has
been established, the defendant has no defense as
to stated facts unless he can persuade the jury that
they were true in all their particulars. Alabama Ride
Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938);
Johnson Publishing Co. v. Davis, 271 Ala. 474, 494
495, 124 So.2d 441, 457-458 (1960). His privilege
of "fair comment" for expressions of opinion
depends on the truth of the facts upon which the
comment is based. Parsons v. Age-Herald
Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350
(1913). Unless he can discharge the burden of
proving truth, general damages are presumed, and
may be awarded without proof of pecuniary injury.
A showing of actual malice is apparently a
prerequisite to recovery of punitive damages, and
the defendant may, in any event, forestall a punitive
award by a retraction meeting the statutory
requirements. Good motives and belief in truth do

not negate an inference of malice, but are relevant
only in mitigation of punitive damages if the jury
chooses to accord them weight. Johnson
Publishing Co. v. Davis, supra, 271 Ala., at 495,
124 So.2d at 458.
The question before us is whether this rule of
liability, as applied to an action brought by a public
official against critics of his official conduct,
abridges the freedom of speech and of the press
that is guaranteed by the First and Fourteenth
Amendments.
Respondent relies heavily, as did the Alabama
courts, on statements of this Court to the effect that
the Constitution does not protect libelous
publications. [Footnote 6] Those statements do not
foreclose our inquiry here. None of the cases
sustained the use of libel laws to impose sanctions
upon expression critical of the official conduct of
public officials. The dictum in Pennekamp v.
Florida, 328 U. S. 331, 328 U. S. 348-349, that
"when the statements amount to defamation, a
judge has such remedy in damages for libel as do
other public servants," implied no view as to what
remedy might constitutionally be afforded to public
officials. In Beauharnais v. Illinois, 343 U. S. 250,
the Court sustained an Illinois criminal libel statute
as applied to a publication held to be both
defamatory of a racial group and "liable to cause
violence and disorder." But the Court was careful to
note that it "retains and exercises authority to nullify
action which encroaches on freedom of utterance
under the guise of punishing libel"; for "public men
are, as it were, public property," and "discussion
cannot be denied, and the right, as well as the duty,
of criticism must not be stifled." Id. at 343 U. S.
263-264, and n. 18. In the only previous case that
did present the question of constitutional limitations
upon the power to award damages for libel of a
public official, the Court was equally divided and
the question was not decided. Schenectady Union
Pub. Co. v. Sweeney, 316 U.S. 642.
In deciding the question now, we are compelled by
neither precedent nor policy to give any more
weight to the epithet "libel" than we have to other
"mere labels" of state law. NAACP v. Button, 371
U. S. 415, 371 U. S. 429. Like insurrection,
[Footnote 7] contempt, [Footnote 8] advocacy of
unlawful acts, [Footnote 9] breach of the peace,
[Footnote 10] obscenity, [Footnote 11] solicitation of
legal business, [Footnote 12] and the various other
CONSTI LAW II ACJUCO 101
formulae for the repression of expression that have
been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations.
It must be measured by standards that satisfy the
First Amendment.
The general proposition that freedom of expression
upon public questions is secured by the First
Amendment has long been settled by our
decisions. The constitutional safeguard, we have
said, "was fashioned to assure unfettered
interchange of ideas for the bringing about of
political and social changes desired by the people."
Roth v. United States, "The maintenance of the
opportunity for free political discussion to the end
that government may be responsive to the will of
the people and that changes may be obtained by
lawful means, an opportunity essential to the
security of the Republic, is a fundamental principle
of our constitutional system."
Stromberg v. California, 283 U. S. 359, 283 U. S.
369. "[I]t is a prized American privilege to speak
one's mind, although not always with perfect good
taste, on all public institutions," Bridges v.
California, 314 U. S. 252, 314 U. S. 270, and this
opportunity is to be afforded for "vigorous
advocacy" no less than "abstract discussion."
NAACP v. Button, The First Amendment, said
Judge Learned Hand, "presupposes that right
conclusions are more likely to be gathered out of a
multitude of tongues than through any kind of
authoritative selection. To many, this is, and always
will be, folly, but we have staked upon it our all."
United States v. Associated Press, 52 F.Supp. 362,
372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in
his concurring opinion in Whitney v. California, 274
U. S. 357, 274 U. S. 375-376, gave the principle its
classic formulation:
"Those who won our independence believed . . .
that public discussion is a political duty, and that
this should be a fundamental principle of the
American government. They recognized the risks to
which all human institutions are subject. But they
knew that order cannot be secured merely through
fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and
imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable
government; that the path of safety lies in the
opportunity to discuss freely supposed grievances
and proposed remedies, and that the fitting remedy

for evil counsels is good ones. Believing in the
power of reason as applied through public
discussion, they eschewed silence coerced by law
-- the argument of force in its worst form.
Recognizing the occasional tyrannies of governing
majorities, they amended the Constitution so that
free speech and assembly should be guaranteed."
Thus, we consider this case against the
background of a profound national commitment to
the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and
public officials. See Terminiello v. Chicago, 337 U.
S. 1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S.
353, 299 U. S. 365. The present advertisement, as
an expression of grievance and protest on one of
the major public issues of our time, would seem
clearly to qualify for the constitutional protection.
The question is whether it forfeits that protection by
the falsity of some of its factual statements and by
its alleged defamation of respondent.
Authoritative interpretations of the First Amendment
guarantees have consistently refused to recognize
an exception for any test of truth -- whether
administered by judges, juries, or administrative
officials -- and especially one that puts the burden
of proving truth on the speaker. Cf. Speiser v.
Randall, 357 U. S. 513, 357 U. S. 525-526. The
constitutional protection does not turn upon "the
truth, popularity, or social utility of the ideas and
beliefs which are offered." NAACP v. Button, 371
U. S. 415, 371 U. S. 445. As Madison said, "Some
degree of abuse is inseparable from the proper use
of everything, and in no instance is this more true
than in that of the press." 4 Elliot's Debates on the
Federal Constitution (1876), p. 571. In Cantwell v.
Connecticut, 310 U. S. 296, 310 U. S. 310, the
Court declared:
"In the realm of religious faith, and in that of political
belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to
his neighbor. To persuade others to his own point
of view, the pleader, as we know, at times resorts
to exaggeration, to vilification of men who have
been, or are, prominent in church or state, and
even to false statement. But the people of this
nation have ordained, in the light of history that, in
spite of the probability of excesses and abuses,
these liberties are, in the long view, essential to
CONSTI LAW II ACJUCO 102
enlightened opinion and right conduct on the part of
the citizens of a democracy."
That erroneous statement is inevitable in free
debate, and that it must be protected if the
freedoms of expression are to have the "breathing
space" that they "need . . . to survive," NAACP v.
Button, 371 U. S. 415, 371 U. S. 433, was also
recognized by the Court of Appeals for the District
of Columbia Circuit in Sweeney v. Patterson, 76
U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942),
cert. denied, 317 U.S. 678. Judge Edgerton spoke
for a unanimous court which affirmed the dismissal
of a Congressman's libel suit based upon a
newspaper article charging him with anti-Semitism
in opposing a judicial appointment. He said:
"Cases which impose liability for erroneous reports
of the political conduct of officials reflect the
obsolete doctrine that the governed must not
criticize their governors. . . . The interest of the
public here outweighs the interest of appellant or
any other individual. The protection of the public
requires not merely discussion, but information.
Political conduct and views which some
respectable people approve, and others condemn,
are constantly imputed to Congressmen. Errors of
fact, particularly in regard to a man's mental states
and processes, are inevitable. . . . Whatever is
added to the field of libel is taken from the field of
free debate. [Footnote 13]"
Injury to official reputation affords no more warrant
for repressing speech that would otherwise be free
than does factual error. Where judicial officers are
involved, this Court has held that concern for the
dignity and reputation of the courts does not justify
the punishment as criminal contempt of criticism of
the judge or his decision. Bridges v. California, 314
U. S. 252. This is true even though the utterance
contains "half-truths" and "misinformation."
Pennekamp v. Florida, 328 U. S. 331, 328 U. S.
342, 328 U. S. 343, n. 5, 328 U. S. 345. Such
repression can be justified, if at all, only by a clear
and present danger of the obstruction of justice.
See also Craig v. Harney, 331 U. S. 367; Wood v.
Georgia, 370 U. S. 375. If judges are to be treated
as "men of fortitude, able to thrive in a hardy
climate," Craig v. Harney, supra, 331 U.S. at 331 U.
S. 376, surely the same must be true of other
government officials, such as elected city
commissioners. [Footnote 14] Criticism of their
official conduct does not lose its constitutional

protection merely because it is effective criticism,
and hence diminishes their official reputations.
If neither factual error nor defamatory content
suffices to remove the constitutional shield from
criticism of official conduct, the combination of the
two elements is no less inadequate. This is the
lesson to be drawn from the great controversy over
the Sedition Act of 1798, 1 Stat. 596, which first
crystallized a national awareness of the central
meaning of the First Amendment. See Levy,
Legacy of Suppression (1960), at 258 et seq.;
Smith, Freedom's Fetters (1956), at 426, 431, and
passim. That statute made it a crime, punishable by
a $5,000 fine and five years in prison,
"if any person shall write, print, utter or publish . . .
any false, scandalous and malicious writing or
writings against the government of the United
States, or either house of the Congress . . . or the
President . . . with intent to defame . . . or to bring
them, or either of them, into contempt or disrepute;
or to excite against them, or either or any of them,
the hatred of the good people of the United States."
The Act allowed the defendant the defense of truth,
and provided that the jury were to be judges both of
the law and the facts. Despite these qualifications,
the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson
and Madison. In the famous Virginia Resolutions of
1798, the General Assembly of Virginia resolved
that it "doth particularly protest against the palpable
and alarming infractions of the Constitution in the
two late cases of the 'Alien and Sedition Acts,'
passed at the last session of Congress. . . . [The
Sedition Act] exercises . . . a power not delegated
by the Constitution, but, on the contrary, expressly
and positively forbidden by one of the amendments
thereto -- a power which, more than any other,
ought to produce universal alarm because it is
leveled against the right of freely examining public
characters and measures, and of free
communication among the people thereon, which
has ever been justly deemed the only effectual
guardian of every other right."
4 Elliot's Debates, supra, pp. 553-554. Madison
prepared the Report in support of the protest. His
premise was that the Constitution created a form of
government under which "The people, not the
government, possess the absolute sovereignty."
The structure of the government dispersed power in
reflection of the people's distrust of concentrated
CONSTI LAW II ACJUCO 103
power, and of power itself at all levels. This form of
government was "altogether different" from the
British form, under which the Crown was sovereign
and the people were subjects. "Is it not natural and
necessary, under such different circumstances," he
asked, "that a different degree of freedom in the
use of the press should be contemplated?" Id., pp.
569-570. Earlier, in a debate in the House of
Representatives, Madison had said:
"If we advert to the nature of Republican
Government, we shall find that the censorial power
is in the people over the Government, and not in
the Government over the people."
4 Annals of Congress, p. 934 (1794). Of the
exercise of that power by the press, his Report
said:
"In every state, probably, in the Union, the press
has exerted a freedom in canvassing the merits
and measures of public men, of every description,
which has not been confined to the strict limits of
the common law. On this footing, the freedom of
the press has stood; on this foundation it yet
stands. . . ."
4 Elliot's Debates, supra, p. 570. The right of free
public discussion of the stewardship of public
officials was thus, in Madison's view, a fundamental
principle of the American form of government.
[Footnote 15]
Although the Sedition Act was never tested in this
Court, [Footnote 16] the attack upon its validity has
carried the day in the court of history. Fines levied
in its prosecution were repaid by Act of Congress
on the ground that it was unconstitutional. See,
e.g., Act of July 4, 1840, c. 45, 6 Stat. 802,
accompanied by H.R.Rep. No. 86, 26th Cong., 1st
Sess. (1840). Calhoun, reporting to the Senate on
February 4, 1836, assumed that its invalidity was a
matter "which no one now doubts." Report with
Senate bill No. 122, 24th Cong., 1st Sess., p. 3.
Jefferson, as President, pardoned those who had
been convicted and sentenced under the Act and
remitted their fines, stating:
"I discharged every person under punishment or
prosecution under the sedition law because I
considered, and now consider, that law to be a
nullity, as absolute and as palpable as if Congress
had ordered us to fall down and worship a golden
image."

Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's
Works (Washington ed.), pp. 555, 556. The
invalidity of the Act has also been assumed by
Justices of this Court. See Holmes, J., dissenting
and joined by Brandeis, J., in Abrams v. United
States, 250 U. S. 616, 250 U. S. 630; Jackson, J.,
dissenting in Beauharnais v. Illinois, 343 U. S. 250,
343 U. S. 288-289; Douglas, The Right of the
People (1958), p. 47. See also Cooley,
Constitutional Limitations (8th ed., Carrington,
1927), pp. 899-900; Chafee, Free Speech in the
United States (1942), pp. 27-28. These views
reflect a broad consensus that the Act, because of
the restraint it imposed upon criticism of
government and public officials, was inconsistent
with the First Amendment.
There is no force in respondent's argument that the
constitutional limitations implicit in the history of the
Sedition Act apply only to Congress, and not to the
States. It is true that the First Amendment was
originally addressed only to action by the Federal
Government, and that Jefferson, for one, while
denying the power of Congress "to controul the
freedom of the press," recognized such a power in
the States. See the 1804 Letter to Abigail Adams
quoted in Dennis v. United States, 341 U. S. 494,
341 U. S. 522, n. 4 (concurring opinion). But this
distinction was eliminated with the adoption of the
Fourteenth Amendment and the application to the
States of the First Amendment's restrictions. See,
e.g., Gitlow v. New York, 268 U. S. 652, 268 U. S.
666; Schneider v. State, 308 U. S. 147, 308 U. S.
160; Bridges v. California, 314 U. S. 252, 314 U. S.
268; Edwards v. South Carolina, 372 U. S. 229,
372 U. S. 235.
What a State may not constitutionally bring about
by means of a criminal statute is likewise beyond
the reach of its civil law of libel. [Footnote 17] The
fear of damage awards under a rule such as that
invoked by the Alabama courts here may be
markedly more inhibiting than the fear of
prosecution under a criminal statute. See City of
Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E.
86, 90 (1923). Alabama, for example, has a
criminal libel law which subjects to prosecution "any
person who speaks, writes, or prints of and
concerning another any accusation falsely and
maliciously importing the commission by such
person of a felony, or any other indictable offense
involving moral turpitude," and which allows as
punishment upon conviction a fine not exceeding
CONSTI LAW II ACJUCO 104
$500 and a prison sentence of six months.
Alabama Code, Tit. 14, § 350. Presumably, a
person charged with violation of this statute enjoys
ordinary criminal law safeguards such as the
requirements of an indictment and of proof beyond
a reasonable doubt. These safeguards are not
available to the defendant in a civil action. The
judgment awarded in this case -- without the need
for any proof of actual pecuniary loss -- was one
thousand times greater than the maximum fine
provided by the Alabama criminal statute, and one
hundred times greater than that provided by the
Sedition Act.
And since there is no double jeopardy limitation
applicable to civil lawsuits, this is not the only
judgment that may be awarded against petitioners
for the same publication. [Footnote 18] Whether or
not a newspaper can survive a succession of such
judgments, the pall of fear and timidity imposed
upon those who would give voice to public criticism
is an atmosphere in which the First Amendment
freedoms cannot survive. Plainly the Alabama law
of civil libel is "a form of regulation that creates
hazards to protected freedoms markedly greater
than those that attend reliance upon the criminal
law."
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372
U. S. 70.
The state rule of law is not saved by its allowance
of the defense of truth. A defense for erroneous
statements honestly made is no less essential here
than was the requirement of proof of guilty
knowledge which, in Smith v. California, 361 U. S.
147, we held indispensable to a valid conviction of
a bookseller for possessing obscene writings for
sale. We said:
"For, if the bookseller is criminally liable without
knowledge of the contents, . . . He will tend to
restrict the books he sells to those he has
inspected, and thus the State will have imposed a
restriction upon the distribution of constitutionally
protected, as well as obscene, literature. . . . And
the bookseller's burden would become the public's
burden, for, by restricting him, the public's access
to reading matter would be restricted. . . . [H]is
timidity in the face of his absolute criminal liability
thus would tend to restrict the public's access to
forms of the printed word which the State could not
constitutionally suppress directly. The bookseller's
self-censorship, compelled by the State, would be a

censorship affecting the whole public, hardly less
virulent for being privately administered. Through it,
the distribution of all books, both obscene and not
obscene, would be impeded."
A rule compelling the critic of official conduct to
guarantee the truth of all his factual assertions --
and to do so on pain of libel judgments virtually
unlimited in amount -- leads to a comparable "self-
censorship." Allowance of the defense of truth, with
the burden of proving it on the defendant, does not
mean that only false speech will be deterred.
[Footnote 19] Even courts accepting this defense
as an adequate safeguard have recognized the
difficulties of adducing legal proofs that the alleged
libel was true in all its factual particulars. See, e.g.,
Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A.
6th Cir. 1893); see also Noel, Defamation of Public
Officers and Candidates, 49 Col.L.Rev. 875, 892
(1949). Under such a rule, would-be critics of
official conduct may be deterred from voicing their
criticism, even though it is believed to be true and
even though it is, in fact, true, because of doubt
whether it can be proved in court or fear of the
expense of having to do so. They tend to make only
statements which "steer far wider of the unlawful
zone." Speiser v. Randall, supra, 357 U.S. at 357
U. S. 526. The rule thus dampens the vigor and
limits the variety of public debate. It is inconsistent
with the First and Fourteenth Amendments. The
constitutional guarantees require, we think, a
federal rule that prohibits a public official from
recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that
the statement was made with "actual malice" -- that
is, with knowledge that it was false or with reckless
disregard of whether it was false or not. An oft-cited
statement of a like rule, which has been adopted by
a number of state courts, [Footnote 20] is found in
the Kansas case of Coleman v. MacLennan, 78
Kan. 711, 98 P. 281 (1908). The State Attorney
General, a candidate for reelection and a member
of the commission charged with the management
and control of the state school fund, sued a
newspaper publisher for alleged libel in an article
purporting to state facts relating to his official
conduct in connection with a school-fund
transaction. The defendant pleaded privilege and
the trial judge, over the plaintiff's objection,
instructed the jury that "where an article is
published and circulated among voters for the sole
purpose of giving what the defendant believes to be
truthful information concerning a candidate for
public office and for the purpose of enabling such
CONSTI LAW II ACJUCO 105
voters to cast their ballot more intelligently, and the
whole thing is done in good faith and without
malice, the article is privileged, although the
principal matters contained in the article may be
untrue, in fact, and derogatory to the character of
the plaintiff, and in such a case the burden is on the
plaintiff to show actual malice in the publication of
the article."
In answer to a special question, the jury found that
the plaintiff had not proved actual malice, and a
general verdict was returned for the defendant. On
appeal, the Supreme Court of Kansas, in an
opinion by Justice Burch, reasoned as follows (78
Kan., at 724, 98 P. at 286):
"It is of the utmost consequence that the people
should discuss the character and qualifications of
candidates for their suffrages. The importance to
the state and to society of such discussions is so
vast, and the advantages derived are so great, that
they more than counterbalance the inconvenience
of private persons whose conduct may be involved,
and occasional injury to the reputations of
individuals must yield to the public welfare,
although at times such injury may be great. The
public benefit from publicity is so great, and the
chance of injury to private character so small, that
such discussion must be privileged."
The court thus sustained the trial court's instruction
as a correct statement of the law, saying:
"In such a case the occasion gives rise to a
privilege, qualified to this extent: any one claiming
to be defamed by the communication must show
actual malice or go remediless. This privilege
extends to a great variety of subjects, and includes
matters of public concern, public men, and
candidates for office."
Such a privilege for criticism of official conduct
[Footnote 21] is appropriately analogous to the
protection accorded a public official when he is
sued for libel by a private citizen. In Barr v. Matteo,
360 U. S. 564, 360 U. S. 575, this Court held the
utterance of a federal official to be absolutely
privileged if made "within the outer perimeter" of his
duties. The States accord the same immunity to
statements of their highest officers, although some
differentiate their lesser officials and qualify the
privilege they enjoy. [Footnote 22] But all hold that
all officials are protected unless actual malice can
be proved. The reason for the official privilege is

said to be that the threat of damage suits would
otherwise "inhibit the fearless, vigorous, and
effective administration of policies of government"
and "dampen the ardor of all but the most resolute,
or the most irresponsible, in the unflinching
discharge of their duties." Barr v. Matteo, supra,
360 U.S. at 360 U. S. 571. Analogous
considerations support the privilege for the citizen-
critic of government. It is as much his duty to
criticize as it is the official's duty to administer. See
Whitney v. California, 274 U. S. 357, 274 U. S. 375
(concurring opinion of Mr. Justice Brandeis), quoted
supra, p. 376 U. S. 270. As Madison said, see
supra p. 376 U. S. 275, "the censorial power is in
the people over the Government, and not in the
Government over the people." It would give public
servants an unjustified preference over the public
they serve, if critics of official conduct did not have
a fair equivalent of the immunity granted to the
officials themselves.
We conclude that such a privilege is required by the
First and Fourteenth Amendments.
III
We hold today that the Constitution delimits a
State's power to award damages for libel in actions
brought by public officials against critics of their
official conduct. Since this is such an action,
[Footnote 23] the rule requiring proof of actual
malice is applicable. While Alabama law apparently
requires proof of actual malice for an award of
punitive damages, [Footnote 24] where general
damages are concerned malice is "presumed."
Such a presumption is inconsistent with the federal
rule. "The power to create presumptions is not a
means of escape from constitutional restrictions,"
Bailey v. Alabama, 219 U. S. 219, 219 U. S. 239,
"the showing of malice required for the forfeiture of
the privilege is not presumed but is a matter for
proof by the plaintiff. . . ." Lawrence v. Fox, 357
Mich. 134, 146, 97 N.W.2d 719, 725 (1959).
[Footnote 25] Since the trial judge did not instruct
the jury to differentiate between general and
punitive damages, it may be that the verdict was
wholly an award of one or the other. But it is
impossible to know, in view of the general verdict
returned. Because of this uncertainty, the judgment
must be reversed and the case remanded.
Stromberg v. California, 283 U. S. 359, 283 U. S.
367-368; Williams v. North Carolina, 317 U. S. 287,
317 U. S. 291-292; see Yates v. United States, 354
U. S. 298, 354 U. S. 311-312; Cramer v. United
States, 325 U. S. 1, 325 U. S. 36, n. 45.
CONSTI LAW II ACJUCO 106
Since respondent may seek a new trial, we deem
that considerations of effective judicial
administration require us to review the evidence in
the present record to determine whether it could
constitutionally support a judgment for respondent.
This Court's duty is not limited to the elaboration of
constitutional principles; we must also in proper
cases review the evidence to make certain that
those principles have been constitutionally applied.
This is such a case, particularly since the question
is one of alleged trespass across "the line between
speech unconditionally guaranteed and speech
which may legitimately be regulated." Speiser v.
Randall, 357 U. S. 513, 357 U. S. 525. In cases
where that line must be drawn, the rule is that we
"examine for ourselves the statements in issue and
the circumstances under which they were made to
see . . . whether they are of a character which the
principles of the First Amendment, as adopted by
the Due Process Clause of the Fourteenth
Amendment, protect."
Pennekamp v. Florida, 328 U. S. 331, 328 U. S.
335; see also One, Inc., v. Olesen, 355 U. S. 371;
Sunshine Book Co. v. Summerfield, 355 U. S. 372.
We must "make an independent examination of the
whole record," Edwards v. South Carolina, 372 U.
S. 229, 372 U. S. 235, so as to assure ourselves
that the judgment does not constitute a forbidden
intrusion on the field of free expression. [Footnote
26]
Applying these standards, we consider that the
proof presented to show actual malice lacks the
convincing clarity which the constitutional standard
demands, and hence that it would not
constitutionally sustain the judgment for respondent
under the proper rule of law. The case of the
individual petitioners requires little discussion. Even
assuming that they could constitutionally be found
to have authorized the use of their names on the
advertisement, there was no evidence whatever
that they were aware of any erroneous statements
or were in any way reckless in that regard. The
judgment against them is thus without constitutional
support.
As to the Times, we similarly conclude that the
facts do not support a finding of actual malice. The
statement by the Times' Secretary that, apart from
the padlocking allegation, he thought the
advertisement was "substantially correct," affords
no constitutional warrant for the Alabama Supreme

Court's conclusion that it was a "cavalier ignoring of
the falsity of the advertisement [from which] the jury
could not have but been impressed with the bad
faith of The Times, and its maliciousness inferable
therefrom."
The statement does not indicate malice at the time
of the publication; even if the advertisement was
not "substantially correct" -- although respondent's
own proofs tend to show that it was -- that opinion
was at least a reasonable one, and there was no
evidence to impeach the witness' good faith in
holding it. The Times' failure to retract upon
respondent's demand, although it later retracted
upon the demand of Governor Patterson, is
likewise not adequate evidence of malice for
constitutional purposes. Whether or not a failure to
retract may ever constitute such evidence, there
are two reasons why it does not here. First, the
letter written by the Times reflected a reasonable
doubt on its part as to whether the advertisement
could reasonably be taken to refer to respondent at
all. Second, it was not a final refusal, since it asked
for an explanation on this point -- a request that
respondent chose to ignore. Nor does the retraction
upon the demand of the Governor supply the
necessary proof. It may be doubted that a failure to
retract, which is not itself evidence of malice, can
retroactively become such by virtue of a retraction
subsequently made to another party. But, in any
event, that did not happen here, since the
explanation given by the Times' Secretary for the
distinction drawn between respondent and the
Governor was a reasonable one, the good faith of
which was not impeached.
Finally, there is evidence that the Times published
the advertisement without checking its accuracy
against the news stories in the Times' own files.
The mere presence of the stories in the files does
not, of course, establish that the Times "knew" the
advertisement was false, since the state of mind
required for actual malice would have to be brought
home to the persons in the Times' organization
having responsibility for the publication of the
advertisement. With respect to the failure of those
persons to make the check, the record shows that
they relied upon their knowledge of the good
reputation of many of those whose names were
listed as sponsors of the advertisement, and upon
the letter from A. Philip Randolph, known to them
as a responsible individual, certifying that the use of
the names was authorized. There was testimony
that the persons handling the advertisement saw
CONSTI LAW II ACJUCO 107
nothing in it that would render it unacceptable
under the Times' policy of rejecting advertisements
containing "attacks of a personal character";
[Footnote 27] their failure to reject it on this ground
was not unreasonable. We think the evidence
against the Times supports, at most, a finding of
negligence in failing to discover the misstatements,
and is constitutionally insufficient to show the
recklessness that is required for a finding of actual
malice. Cf. Charles Parker Co. v. Silver City Crystal
Co., 142 Conn. 605, 618, 116 A.2d 440, 446
(1955); Phoenix Newspapers, Inc., v. Choisser, 82
Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957).
We also think the evidence was constitutionally
defective in another respect: it was incapable of
supporting the jury's finding that the allegedly
libelous statements were made "of and concerning"
respondent. Respondent relies on the words of the
advertisement and the testimony of six witnesses to
establish a connection between it and himself.
Thus, in his brief to this Court, he states:
"The reference to respondent as police
commissioner is clear from the ad. In addition, the
jury heard the testimony of a newspaper editor . . . ;
a real estate and insurance man . . . ; the sales
manager of a men's clothing store . . . ; a food
equipment man . . . ; a service station operator . . . ,
and the operator of a truck line for whom
respondent had formerly worked. . . . Each of these
witnesses stated that he associated the statements
with respondent. . . ."
(Citations to record omitted.) There was no
reference to respondent in the advertisement,
either by name or official position. A number of the
allegedly libelous statements -- the charges that the
dining hall was padlocked and that Dr. King's home
was bombed, his person assaulted, and a perjury
prosecution instituted against him -- did not even
concern the police; despite the ingenuity of the
arguments which would attach this significance to
the word "They," it is plain that these statements
could not reasonably be read as accusing
respondent of personal involvement in the acts in
question. The statements upon which respondent
principally relies as referring to him are the two
allegations that did concern the police or police
functions: that "truckloads of police . . . ringed the
Alabama State College Campus" after the
demonstration on the State Capitol steps, and that
Dr. King had been "arrested . . . seven times."
These statements were false only in that the police

had been "deployed near" the campus, but had not
actually "ringed" it, and had not gone there in
connection with the State Capitol demonstration,
and in that Dr. King had been arrested only four
times. The ruling that these discrepancies between
what was true and what was asserted were
sufficient to injure respondent's reputation may
itself raise constitutional problems, but we need not
consider them here. Although the statements may
be taken as referring to the police, they did not, on
their face, make even an oblique reference to
respondent as an individual. Support for the
asserted reference must, therefore, be sought in
the testimony of respondent's witnesses. But none
of them suggested any basis for the belief that
respondent himself was attacked in the
advertisement beyond the bare fact that he was in
overall charge of the Police Department and thus
bore official responsibility for police conduct; to the
extent that some of the witnesses thought
respondent to have been charged with ordering or
approving the conduct or otherwise being
personally involved in it, they based this notion not
on any statements in the advertisement, and not on
any evidence that he had, in fact, been so involved,
but solely on the unsupported assumption that,
because of his official position, he must have been.
[Footnote 28] This reliance on the bare fact of
respondent's official position [Footnote 29] was
made explicit by the Supreme Court of Alabama.
That court, in holding that the trial court "did not err
in overruling the demurrer [of the Times] in the
aspect that the libelous matter was not of and
concerning the [plaintiff,]" based its ruling on the
proposition that:
"We think it common knowledge that the average
person knows that municipal agents, such as police
and firemen, and others, are under the control and
direction of the city governing body, and more
particularly under the direction and control of a
single commissioner. In measuring the
performance or deficiencies of such groups, praise
or criticism is usually attached to the official in
complete control of the body."
This proposition has disquieting implications for
criticism of governmental conduct. For good
reason, "no court of last resort in this country has
ever held, or even suggested, that prosecutions for
libel on government have any place in the
American system of jurisprudence."
CONSTI LAW II ACJUCO 108
City of Chicago v. Tribune Co., 307 Ill. 595, 601,
139 N.E. The present proposition would sidestep
this obstacle by transmuting criticism of
government, however impersonal it may seem on
its face, into personal criticism, and hence potential
libel, of the officials of whom the government is
composed. There is no legal alchemy by which a
State may thus create the cause of action that
would otherwise be denied for a publication which,
as respondent himself said of the advertisement,
"reflects not only on me but on the other
Commissioners and the community." Raising as it
does the possibility that a good faith critic of
government will be penalized for his criticism, the
proposition relied on by the Alabama courts strikes
at the very center of the constitutionally protected
area of free expression. [Footnote 30] We hold that
such a proposition may not constitutionally be
utilized to establish that an otherwise impersonal
attack on governmental operations was a libel of an
official responsible for those operations. Since it
was relied on exclusively here, and there was no
other evidence to connect the statements with
respondent, the evidence was constitutionally
insufficient to support a finding that the statements
referred to respondent.
The judgment of the Supreme Court of Alabama is
reversed, and the case is remanded to that court
for further proceedings not inconsistent with this
opinion. Reversed and remanded.
G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS,
INCORPORATED and KAMAHALAN
PUBLISHING CORPORATION, doing business
as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is
a private non-stock, non-profit social research
institution conducting surveys in various fields,
including economics, politics, demography, and
social development, and thereafter processing,
analyzing, and publicly reporting the results thereof.
On the other hand, petitioner Kamahalan
Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation,
which features news- worthy items of information
including election surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to
enjoin the Commission on Elections from enforcing
§5.4 of RA. No.9006 (Fair Election Act), which
provides:
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and
surveys affecting local candidates shall not be
published seven (7) days be- fore an election.
The term "election surveys" is defined in §5.1 of the
law as follows:
Election surveys refer to the measurement of
opinions and perceptions of the voters as regards a
candidate's popularity, qualifications, platforms or a
matter of public discussion in relation to the
election, including voters preference for candidates
or publicly discussed issues during the campaign
period (hereafter referred to as "Survey").
The implement §5.4, Resolution 3636, §24(h),
dated March I, 2001, of the COMELEC enjoins –
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and
surveys affecting local candidates shall not be
published seven (7) days be- fore an election.
Petitioner SWS states that it wishes to conduct an
election survey throughout the period of the
elections both at the national and local levels and
release to the media the results of such survey as
well as publish them directly. Petitioner Kamahalan
Publishing Corporation, on the other hand, states
that it intends to publish election survey results up
to the last day of the elections on May 14,2001.
Petitioners argue that the restriction on the
publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such
restraint. They claim that SWS and other pollsters
conducted and published the results of surveys
prior to the 1992, 1995, and 1998 elections up to as
close as two days before the election day without
causing confusion among the voters and that there
is neither empirical nor historical evidence to
support the conclusion that there is an immediate
and inevitable danger to tile voting process posed
by election surveys. They point out that no similar
restriction is imposed on politicians from explaining
their opinion or on newspapers or broadcast media
CONSTI LAW II ACJUCO 109
from writing and publishing articles concerning
political issues up to the day of the election.
Consequently, they contend that there is no reason
for ordinary voters to be denied access to the
results of election surveys, which are relatively
objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the
restrictions in §5.4 of R.A. No. 9006 as necessary
to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous
surveys just before the election. It contends that (1)
the prohibition on the publication of election survey
results during the period proscribed by law bears a
rational connection to the objective of the law, i.e.,
the prevention of the debasement of the electoral
process resulting from manipulated surveys,
bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the "evils" sought to be
prevented; and (3) the impairment of freedom of
expression is minimal, the restriction being limited
both in duration, i.e., the last 15 days before the
national election and the last 7 days before a local
election, and in scope as it does not prohibit
election survey results but only require timeliness.
Respondent claims that in National Press Club v.
COMELEC,1 a total ban on political
advertisements, with candidates being merely
allocated broadcast time during the so-called
COMELEC space or COMELEC hour, was upheld
by this Court. In contrast, according to respondent,
it states that the prohibition in §5.4 of RA. No. 9006
is much more limited.
For reasons hereunder given, we hold that §5.4 of
R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and
the press.
To be sure, §5.4Iays a prior restraint on freedom of
speech, expression, and the press prohibiting the
publication of election survey results affecting
candidates within the prescribed periods of fifteen
(15) days immediately preceding a national election
seven (7) days before a local election. Because of
tile preferred status of tile constitutional rights of
speech, expression, and he press, such a measure
is vitiated by a weighty presumption of invalidity.2
Indeed, any system of prior restraints of expression
comes to this Court bearing a heavy Presumption
against its constitutional validity. ...The Government
thus carries a heavy burden of showing justification
for in enforcement of such restraint. "'3 There, thus

a reversal of the normal presumption of validity that
inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4
of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of
communication, no presumption of invalidity
attaches to a measure like §5.4. For as we have
pointed out in sustaining tile ban on media political
advertisements, the grant of power to the
COMELEC under Art. IX-C, §4 is limited to
ensuring "equal opportunity, time, space, and the
right to reply" as well as uniform and reasonable
rates of charges for the use of such media facilities
"public information campaigns and forums among
candidates."4 This Court stated:
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.5
MR JUSTICE KAPUNAN dissents. He rejects as
inappropriate the test of clear and present danger
for determining the validity of §5.4. Indeed, as has
been pointed out in Osmeña v. COMELEC,6 this
test was originally formulated for the criminal law
and only later appropriated for free speech cases.
Hence, while it may be useful for determining the
validity of laws dealing with inciting to sedition or
incendiary speech, it may not be adequate for such
regulations as the one in question. For such a test
is concerned with questions of the gravity and
imminence of the danger as basis for curtailing free
speech, which is not the case of §5.4 and similar
regulations.
Instead, MR JUSTICE KAPUNAN purports to
engage in a form of balancing by "weighing and
balancing the circumstances to determine whether
public interest [in free, orderly, honest, peaceful
and credible elections] is served by the regulation
of the free enjoyment of the rights" (page 7). After
canvassing the reasons for the prohibition, i.e., to
prevent last-minute pressure on voters, the creation
of bandwagon effect to favor candidates,
misinformation, the junking" of weak and "losing"
candidates by their parties, and the form of election
CONSTI LAW II ACJUCO 110
cheating called "dagdag-bawas" and invoking the
State's power to supervise media of information
during the election period (pages 11-16), the
dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant
objectives of Section 5.4, It may be seen that its
limiting impact on the rights of free speech and of
the press is not unduly repressive or unreasonable.
In Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It
is limited in duration; it applies only during the
period when the voters are presumably
contemplating whom they should elect and when
they are most susceptible to such unwarranted
persuasion. These surveys may be published
thereafter. (Pages 17-18)
The dissent does not, however, show why, on
balance, these considerations should outweigh the
value of freedom of expression. Instead, reliance is
placed on Art. IX-C, §4. As already stated, the
purpose of Art. IX-C, §4 is to "ensure equal
opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public
information campaigns and forums among
candidates. " Hence the validity of the ban on
media advertising. It is noteworthy that R.A. No.
9006, § 14 has lifted the ban and now allows
candidates to advertise their candidacies in print
and broadcast media. Indeed, to sustain the ban on
the publication of survey results would sanction the
censorship of all speaking by candidates in an
election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can
confuse voters and thus debase the electoral
process.
In sum, the dissent has engaged only in a
balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the
challenged legislation and leaves freedom of
speech, expression, and the press with little
protection. For anyone who can bring a plausible
justification forward can easily show a rational
connection between the statute and a legitimate
governmental purpose. In contrast, the balancing of
interest undertaken by then Justice Castro in
Gonzales v. COMELEC,7 from which the dissent in
this case takes its cue, was a strong one resulting
in his conclusion that , §50-B of R.A. No. 4880,
which limited the period of election campaign and
partisan political activity, was an unconstitutional
abridgment of freedom of expression.

Nor can the ban on election surveys be justified on
the ground that there are other countries - 78,
according to the Solicitor General, while the dissent
cites 28 - which similarly impose restrictions on the
publication of election surveys. At best this survey
is inconclusive. It is note worthy that in the United
States no restriction on the publication of election
survey results exists. It cannot be argued that this
is because the United States is a mature
democracy. Neither are there laws imposing an
embargo on survey results, even for a limited
period, in other countries. As pointed out by
petitioners, the United Kingdom, Austria, Belgium,
Denmark, Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands, Norway,
Sweden, and Ukraine, some of which are no older
nor more mature than the Philippines in political
development, do not restrict the publication of
election survey results.
What test should then be employed to determine
the constitutional validity of §5.4? The United
States Supreme Court, through Chief Justice
Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1]
if it is within the constitutional power of the
Government; [2] if it furthers an important or
substantial governmental interest; [3] if the
governmental interest is unrelated to the
suppression of free expression; and [4] if the
incidental restriction on alleged First Amendment
freedoms [of speech, expression and press] is no
greater than is essential to the furtherance of that
interest.8
This is so far the most influential test for
distinguishing content-based from content neutral
regulations and is said to have "become canonical
in the review of such laws."9 is noteworthy that the
O 'Brien test has been applied by this Court in at
least two cases.10
Under this test, even if a law furthers an important
or substantial governmental interest, it should be
invalidated if such governmental interest is "not
unrelated to the Expression of free expression."
Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should
nevertheless be invalidated if the restriction on
freedom of expression is greater than is necessary
to achieve the governmental purpose in question.
CONSTI LAW II ACJUCO 111
Our inquiry should accordingly focus on these two
considerations as applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O
'Brien test because the causal connection of
expression to the asserted governmental interest
makes such interest "not related to the suppression
of free expression." By prohibiting the publication of
election survey results because of the possibility
that such publication might undermine the integrity
of the election, §5.4 actually suppresses a whole
class of expression, while allowing the expression
of opinion concerning the same subject matter by
newspaper columnists, radio and TV
commentators, armchair theorists, and other
opinion takers. In effect, §5.4 shows a bias for a
particular subject matter, if not viewpoint, by
referring personal opinion to statistical results. The
constitutional guarantee of freedom of expression
means that "the government has no power to
restrict expression because of its message, its
ideas, its subject matter, or its content."11 The
inhibition of speech should be upheld only if the
expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New
Hampshire, 12 thus:
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, the profane, the libelous, and the insulting
or 'fighting' words - those which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of
such slight social 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
Nor is there justification for the prior restraint which
§5.4Iays on protected speech. Near v.
Minnesota,13 it was held:
[The] protection even as to previous restraint is not
absolutely unlimited. But the limitation has been
recognized only in exceptional cases…. No one
would question but that a government might
prevent actual obstruction to its recruiting service or
the publication of the sailing dates transports or the
number and location of troops. On similar grounds,
the primary requirements of decency may be
enforced against obscene publications. The

security of the community life may be protected
against incitements to acts of violence and
overthrow by force of orderly government…
Thus, contrary to the claim of the Solicitor General,
the prohibition imposed by §5.4 cannot be justified
on the ground that it is only for a limited period and
is only incidental. The prohibition may be for a
limited time, but the curtailment of the right of
expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of
speech and is not made less so because it is only
for a period of fifteen (15) days immediately before
a national election and seven (7) days immediately
before a local election. ..
This sufficiently distinguishes §5.4 from R.A. No.
6646, §11(b), which this Court found to be valid in
National Press Club v. COMELEC,14 and Osmeña
v. COMELEC.15 For the ban imposed by R.A. No.
6646, §11(b) is not only authorized by a specific
constitutional provision,16 but it also provided an
alternative so that, as this Court pointed out in
Osmeña, there was actually no ban but only a
substitution of media advertisements by the
COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought
to be promoted is unrelated to the suppression of
speech and the resulting restriction of free
expression is only incidental, §5.4 nonetheless fails
to meet criterion [4] of the O 'Brien test, namely,
that the restriction be not greater than is necessary
to further the governmental interest. As already
stated, §5.4 aims at the prevention of last-minute
pressure on voters, the creation of bandwagon
effect, "junking" of weak or "losing" candidates, and
resort to the form of election cheating called
"dagdag-bawas." Praiseworthy as these aims of the
regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression,
when such aim can be more narrowly pursued by
punishing unlawful acts, rather than speech
because of apprehension that such speech creates
the danger of such evils. Thus, under the
Administrative Code of 1987,17 the COMELEC is
given the power:
To stop any illegal activity, or confiscate, tear down,
and stop any unlawful, libelous, misleading or false
election propaganda, after due notice and hearing.
This is surely a less restrictive means than the
prohibition contained in §5.4. Pursuant to this
CONSTI LAW II ACJUCO 112
power of the COMELEC, it can confiscate bogus
survey results calculated to mislead voters.
Candidates can have their own surveys conducted.
No right of reply can be invoked by others. No
principle of equality is involved. It is a free market to
which each candidate brings his ideas. As for the
purpose of the law to prevent bandwagon effects, it
is doubtful whether the Government can deal with
this natural-enough tendency of some voters. Some
voters want to be identified with the "winners."
Some are susceptible to the herd mentality. Can
these be legitimately prohibited by suppressing the
publication of survey results, which are a form of
expression? It has been held that "[mere] legislative
preferences or beliefs respecting matters of public
convenience may well support regulation directed
at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so
vital to the maintenance of democratic
institutions."18
To summarize then, we hold that §5.4 is invalid
because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total
suppression of a category of expression even
though such suppression is only for a limited
period, and (3) the governmental interest sought to
be promoted can be achieved by means other than
suppression of freedom of expression.
On the other hand, the COMELEC contends that
under Art. IX-A, §7 of the Constitution, its decisions,
orders, or resolution may be reviewed by this Court
only certiorari. The flaws in this argument is that it
assumes that its Resolution 3636, March 1, 2001 is
a "decision, order, or resolution" within the meaning
of Art. IX-A, §7. Indeed, counsel for COMELEC
maintain that Resolution 3636 was "rendered" by
the Commission. However, the Resolution does not
purport to adjudicate the right of any party. It is not
an exercise by the COMELEC of its adjudicatory
power to settle the claims of parties. To the
contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A.
No. 9006. Hence, there is no basis for COMELEC's
claim that this petition for prohibition is
inappropriate. Prohibition has been fund
appropriate for testing the constitutionality of
various election laws, rules, and regulations.19
WHEREFORE, the petition for prohibited
GRANTED and §5.4 of R.A. No. 9006 §24(h) of
COMELEC Resolution 3636, March 1, 2001, are
declared unconstitutional. 1âwphi1.nêt
 CONSTI LAW II ACJUCO 113

SO ORDERED.

G.R. No. 205357 September 2, 2014

GMA NETWORK, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

SENATOR ALAN PETER "COMPAÑERO" S.

CAYETANO,Petitioner-Intervenor.
x-----------------------x

G.R. No. 205374

ABC DEVELOPMENT CORPORATION,

Petitioner,
vs.

COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205592
MANILA BROADCASTING COMPANY, INC. and
NEWSOUNDS BROADCASTING NETWORK,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205852
KAPISANAN NG MGA BRODKASTER NG
PILIPINAS (KBP) and ABS-CBN
CORPORATION, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 206360
RADIO MINDANAO NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
PERALTA, J.:
"The clash of rights demands a delicate balancing
of interests approach which is a 'fundamental
postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully
drawn balance in the incessant conflicts between
rights and regulations, liberties and limitations, and
competing demands of the different segments of
society. Here, we are confronted with the need to
strike a workable and viable equilibrium between a
constitutional mandate to maintain free, orderly,
honest, peaceful and credible elections, together
with the aim of ensuring equal opportunity, time and
space, and the right to reply, including reasonable,
equal rates therefor, for public information
campaigns and forums among candidates,2 on one
hand, and the imperatives of a republican and
democratic state,3 together with its guaranteed
rights of suffrage,4 freedom of speech and of the
CONSTI LAW II ACJUCO 114
press,5 and the people's right to information,6 on
the other.
In a nutshell, the present petitions may be seen as
in search of the answer to the question - how does
the Charter of a republican and democratic State
achieve a viable and acceptable balance between
liberty, without which, government becomes an
unbearable tyrant, and authority, without which,
society becomes an intolerable and dangerous
arrangement?
Assailed in these petitions are certain regulations
promulgated by the Commission on Elections
(COMELEC) relative to the conduct of the 2013
national and local elections dealing with political
advertisements. Specifically, the petitions question
the constitutionality of the limitations placed on
aggregate airtime allowed to candidates and
political parties, as well as the requirements
incident thereto, such as the need to report the
same, and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue
the alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution)
limiting the broadcast and radio advertisements of
candidates and political parties for national election
positions to an aggregate total of one hundred
twenty (120) minutes and one hundred eighty (180)
minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time
violates freedom of the press, impairs the people's
right to suffrage as well as their right to information
relative to the exercise of their right to choose who
to elect during the forth coming elections.
The heart of the controversy revolves upon the
proper interpretation of the limitation on the number
of minutes that candidates may use for television
and radio advertisements, as provided in Section 6
of Republic Act No. 9006 (R.A. No. 9006),
otherwise known as the Fair Election Act. Pertinent
portions of said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. -
All registered parties and bona fide candidates shall
have equal access to media time and space. The
following guidelines may be amplified on by the
COMELEC:
xxxx

6.2 (a) Each bona fide candidate or registered
political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120)
minutes of television advertisement and one
hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.
b. Each bona fide candidate or registered political
party for a locally elective office shall be entitled to
not more than sixty ( 60) minutes of television
advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any
broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs and
certificates of performance for the review and
verification of the frequency, date, time and
duration of advertisements broadcast for any
candidate or political party.
During the previous elections of May 14, 2007 and
May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No.
9006, regarding airtime limitations, to mean that a
candidate is entitled to the aforestated number of
minutes "per station."7 For the May 2013 elections,
however, respondent COMELEC promulgated
Resolution No. 9615 dated January 15, 2013,
changing the interpretation of said candidates' and
political parties' airtime limitation for political
campaigns or advertisements from a "per station"
basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN),
ABC Development Corporation (ABC), GMA
Network, Incorporated ( GMA), Manila
Broadcasting Company, Inc. (MBC), Newsounds
Broadcasting Network, Inc. (NBN), and Radio
Mindanao Network, Inc. (RMN) are
owners/operators of radio and television networks
in the Philippines, while petitioner Kapisanan ng
mga Brodkaster ng Pilipinas (KBP) is the national
organization of broadcasting companies in the
Philippines representing operators of radio and
television stations and said stations themselves.
They sent their respective letters to the COMELEC
questioning the provisions of the aforementioned
Resolution, thus, the COMELEC held public
hearings. Thereafter, on February 1, 2013,
respondent issued Resolution No. 9631 amending
provisions of Resolution No. 9615. Nevertheless,
petitioners still found the provisions objectionable
and oppressive, hence, the present petitions.
CONSTI LAW II ACJUCO 115
All of the petitioners assail the following provisions
of the Resolution:
a) Section 7 (d),8 which provides for a penalty of
suspension or revocation of an offender's franchise
or permit, imposes criminal liability against
broadcasting entities and their officers in the event
they sell airtime in excess of the size, duration, or
frequency authorized in the new rules;
b) Section 9 (a),9 which provides for an "aggregate
total" airtime instead of the previous "per station"
airtime for political campaigns or dvertisements,
and also required prior COMELEC approval for
candidates' television and radio guestings and
appearances; and
c) Section 14,10 which provides for a candidate's
"right to reply."
In addition, petitioner ABC also questions Section 1
(4) 11 thereof, which defines the term "political
advertisement" or "election propaganda," while
petitioner GMA further assails Section 35, 12 which
states that any violation of said Rules shall
constitute an election offense.
On March 15, 2013, Senator Alan Peter S.
Cayetano (Petitioner-Intervenor) filed a Motion for
Leave to Intervene and to File and Admit the
Petition-in-Intervention, which was granted by the
Court per its Resolution dated March 19, 2013.
Petitioner-Intervenor also assails Section 9 (a) of
the Resolution changing the interpretation of
candidates' and political parties' airtime limitation
for political campaigns or advertisements from a
"per station" basis, to a "total aggregate" basis.
Petitioners allege that Resolutions No. 9615 and
9631, amending the earlier Resolution, are
unconstitutional and issued without jurisdiction or
with grave abuse of discretion amounting to lack or
excess of jurisdiction, for the reasons set forth
hereunder.
Petitioners posit that Section 9 (a) of the assailed
Resolution provides for a very restrictive aggregate
airtime limit and a vague meaning for a proper
computation of "aggregate total" airtime, and
violates the equal protection guarantee, thereby
defeating the intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which
imposes a notice requirement, is vague and

infringes on the constitutionally protected freedom
of speech, of the press and of expression, and on
the right of people to be informed on matters of
public concern
Also, Section 9 (a) is a cruel and oppressive
regulation as it imposes an unreasonable and
almost impossible burden on broadcast mass
media of monitoring a candidate's or political party's
aggregate airtime, otherwise, it may incur
administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null
and void for unlawfully criminalizing acts not
prohibited and penalized as criminal offenses by
R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a
candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being an
improper exercise of the COMELEC's regulatory
powers; for constituting prior restraint and infringing
petitioners' freedom of expression, speech and the
press; and for being violative of the equal protection
guarantee. In addition to the foregoing, petitioner
GMA further argues that the Resolution was
promulgated without public consultations, in
violation of petitioners' right to due process.
Petitioner ABC also avers that the Resolution's
definition of the terms "political advertisement" and
"election propaganda" suffers from overbreadth,
thereby producing a "chilling effect," constituting
prior restraint.
On the other hand, respondent posits in its
Comment and Opposition13 dated March 8, 2013,
that the petition should be denied based on the
following reasons:
Respondent contends that the remedies of
certiorari and prohibition are not available to
petitioners, because the writ of certiorari is only
available against the COMELEC's adjudicatory or
quasi-judicial powers, while the writ of prohibition
only lies against the exercise of judicial,
quasijudicial or ministerial functions. Said writs do
not lie against the COMELEC's administrative or
rule-making powers.
Respondent likewise alleges that petitioners do not
have locus standi, as the constitutional rights and
freedoms they enumerate are not personal to them,
rather, they belong to candidates, political parties
and the Filipino electorate in general, as the
CONSTI LAW II ACJUCO 116
limitations are imposed on candidates, not on
media outlets. It argues that petitioners' alleged risk
of exposure to criminal liability is insufficient to give
them legal standing as said "fear of injury" is highly
speculative and contingent on a future act.
Respondent then parries petitioners' attack on the
alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule
or total aggregate airtime limit is in accordance with
R.A. No. 9006 as this would truly give life to the
constitutional objective to equalize access to media
during elections. It sees this as a more effective
way of levelling the playing field between
candidates/political parties with enormous
resources and those without much. Moreover, the
COMELEC's issuance of the assailed Resolution is
pursuant to Section 4, Article IX (C) of the
Constitution which vests on the COMELEC the
power to supervise and regulate, during election
periods, transportation and other public utilities, as
well as mass media, to wit:
Sec. 4. The Commission 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, and 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.
This being the case, then the Resolutions cannot
be said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not
vague because the assailed Resolutions have
given clear and adequate mechanisms to protect
broadcast stations from potential liability arising
from a candidate's or party's violation of airtime
limits by putting in the proviso that the station "may
require buyer to warrant under oath that such
purchase [of airtime] is not in excess of size,
duration or frequency authorized by law or these
rules." Furthermore, words should be understood in

the sense that they have in common usage, and
should be given their ordinary meaning. Thus, in
the provision for the right to reply, "charges" against
candidates or parties must be understood in the
ordinary sense, referring to accusations or
criticisms.
Respondent also sees no prior restraint in the
provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona
fide news broadcasts. It points out that the fact that
notice may be given 24 hours after first broadcast
only proves that the mechanism is for monitoring
purposes only, not for censorship. Further,
respondent argues, that for there to be prior
restraint, official governmental restrictions on the
press or other forms of expression must be done in
advance of actual publication or dissemination.
Moreover, petitioners are only required to inform
the COMELEC of candidates'/parties' guestings,
but there is no regulation as to the content of the
news or the expressions in news interviews or
news documentaries. Respondent then
emphasized that the Supreme Court has held that
freedom of speech and the press may be limited in
light of the duty of the COMELEC to ensure equal
access to opportunities for public service.
With regard to the right to reply provision,
respondent also does not consider it as restrictive
of the airing of bona fide news broadcasts. More
importantly, it stressed, the right to reply is
enshrined in the Constitution, and the assailed
Resolutions provide that said right can only be had
after going through administrative due process. The
provision was also merely lifted from Section 10 of
R.A. No. 9006, hence, petitioner ABC is actually
attacking the constitutionality of R.A. No. 9006,
which cannot be done through a collateral attack.
Next, respondent counters that there is no merit to
ABC's claim that the Resolutions' definition of
"political advertisement" or "election propaganda"
suffers from overbreadth, as the extent or scope of
what falls under said terms is clearly stated in
Section 1 (4) of Resolution No. 9615.
It is also respondent's view that the nationwide
aggregate total airtime does not violate the equal
protection clause, because it does not make any
substantial distinctions between national and
regional and/or local broadcast stations, and even
without the aggregate total airtime rule, candidates
and parties are likely to be more inclined to
CONSTI LAW II ACJUCO 117
advertise in national broadcast stations.
Respondent likewise sees no merit in petitioners'
claim that the Resolutions amount to taking of
private property without just compensation.
Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves
and frequencies through which they transmit
broadcast signals; they are merely given the
temporary privilege to use the same. Since they are
merely enjoying a privilege, the same may be
reasonably burdened with some form of public
service, in this case, to provide candidates with the
opportunity to reply to charges aired against them.
Lastly, respondent contends that the public
consultation requirement does not apply to
constitutional commissions such as the COMELEC,
pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9,
Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise
required by law, an agency shall, as far as
practicable, publish or circulate notices of proposed
rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said
Code clearly provides:
Section 1. Scope. -This Book shall be applicable to
all agencies as defined in the next succeeding
section, except the Congress, the Judiciary, the
Constitutional Commissions, military
establishments in all matters relating exclusively to
Armed Forces personnel, the Board of Pardons and
Parole, and state universities and colleges.
Nevertheless, even if public participation is not
required, respondent still conducted a meeting with
representatives of the KBP and various media
outfits on December 26, 2012, almost a month
before the issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14
where it advanced the following counter-arguments:
According to GMA, a petition for certiorari is the
proper remedy to question the herein assailed
Resolutions, which should be considered as a
"decision, order or ruling of the Commission" as
mentioned in Section 1, Rule 37 of the COMELEC
Rules of Procedure which provides:

Section 1. Petition for Certiorari,· and Time to File. -
Unless otherwise provided by law, or by any
specific provisions in these Rules, any decision,
order or ruling of the Commission may be brought
to the Supreme Court on certiorari by the aggrieved
party within thirty (30) days from its promulgation.
GMA further stressed that this case involves
national interest, and the urgency of the matter
justifies its resort to the remedy of a petition for
certiorari.
Therefore, GMA disagrees with the COMELEC's
position that the proper remedy is a petition for
declaratory relief because such action only asks the
court to make a proper interpretation of the rights of
parties under a statute or regulation. Such a
petition does not nullify the assailed statute or
regulation, or grant injunctive relief, which
petitioners are praying for in their petition. Thus,
GMA maintains that a petition for certiorari is the
proper remedy.
GMA further denies that it is making a collateral
attack on the Fair Election Act, as it is not attacking
said law. GMA points out that it has stated in its
petition that the law in fact allows the sale or
donation of airtime for political advertisements and
does not impose criminal liability against radio and
television stations. What it is assailing is the
COMELEC's erroneous interpretation of the law's
provisions by declaring such sale and/or donation
of airtime unlawful, which is contrary to the purpose
of the Fair Election Act.
GMA then claims that it has legal standing to bring
the present suit because:
x x x First, it has personally suffered a threatened
injury in the form of risk of criminal liability because
of the alleged unconstitutional and unlawful conduct
of respondent COMELEC in expanding what was
provided for in R.A. No. 9006. Second, the injury is
traceable to the challenged action of respondent
COMELEC, that is, the issuance of the assailed
Resolutions. Third, the injury is likely to be
redressed by the remedy sought in petitioner
GMA's Petition, among others, for the Honorable
Court to nullify the challenged pertinent provisions
of the assailed Resolutions.15
On substantive issues, GMA first argues that the
questioned Resolutions are contrary to the
objective and purpose of the Fair Election Act. It
CONSTI LAW II ACJUCO 118
points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A.
No. 6646. The Fair Election Act also speaks of
"equal opportunity" and "equal access,'' but said
law never mentioned equalizing the economic
station of the rich and the poor, as a declared
policy. Furthermore, in its opinion, the supposed
correlation between candidates' expenditures for
TV ads and actually winning the elections, is a
mere illusion, as there are other various factors
responsible for a candidate's winning the election.
GMA then cites portions of the deliberations of the
Bicameral Conference Committee on the bills that
led to the enactment of the Fair Election Act, and
alleges that this shows the legislative intent that
airtime allocation should be on a "per station" basis.
Thus, GMA claims it was arbitrary and a grave
abuse of discretion for the COMELEC to issue the
present Resolutions imposing airtime limitations on
an "aggregate total" basis.
It is likewise insisted by GMA that the assailed
Resolutions impose an unconstitutional burden on
them, because their failure to strictly monitor the
duration of total airtime that each candidate has
purchased even from other stations would expose
their officials to criminal liability and risk losing the
station's good reputation and goodwill, as well as
its franchise. It argues that the wordings of the
Resolutions belie the COMELEC's claim that
petitioners would only incur liability if they
"knowingly" sell airtime beyond the limits imposed
by the Resolutions, because the element of
knowledge is clearly absent from the provisions
thereof. This makes the provisions have the nature
of malum prohibitum.
Next, GMA also says that the application of the
aggregate airtime limit constitutes prior restraint
and is unconstitutional, opining that "[t]he reviewing
power of respondent COMELEC and its sole
judgment of a news event as a political
advertisement are so pervasive under the assailed
Resolutions, and provoke the distastes or chilling
effect of prior restraint"16 as even a legitimate
exercise of a constitutional right might expose it to
legal sanction. Thus, the governmental interest of
leveling the playing field between rich and poor
candidates cannot justify the restriction on the
freedoms of expression, speech and of the press.
On the issue of lack of prior public participation,
GMA cites Section 82 of the Omnibus Election
Code, pertinent portions of which provide, thus:

Section 82. Lawful election propaganda. - Lawful
election propaganda shall include:
xxxx
All other forms of election propaganda not
prohibited by this Code as the Commission may
authorize after due notice to all interested parties
and hearing where all the interested parties were
given an equal opportunity to be heard: Provided,
That the Commission's authorization shall be
published in two newspapers of general circulation
throughout the nation for at least twice within one
week after the authorization has been granted.
There having been no prior public consultation
held, GMA contends that the COMELEC is guilty of
depriving petitioners of its right to due process of
law.
GMA then concludes that it is also entitled to a
temporary restraining order, because the
implementation of the Resolutions in question will
cause grave and irreparable damage to it by
disrupting and emasculating its mandate to provide
television and radio services to the public, and by
exposing it to the risk of incurring criminal and
administrative liability by requiring it to perform the
impossible task of surveillance and monitoring, or
the broadcasts of other radio and television
stations.
Thereafter, on April 4, 2013, the COMELEC,
through the Office of the Solicitor General (OSG),
filed a Supplemental Comment and Opposition17
where it further expounded on the legislative intent
behind the Fair Election Act, also quoting portions
of the deliberations of the Bicameral Conference
Committee, allegedly adopting the Senate Bill
version setting the computation of airtime limits on
a per candidate, not per station, basis. Thus, as
enacted into law, the wordings of Section 6 of the
Fair Election Act shows that the airtime limit is
imposed on a per candidate basis, rather than on a
per station basis. Furthermore, the COMELEC
states that petitioner intervenor Senator Cayetano
is wrong in arguing that there should be empirical
data to support the need to change the computation
of airtime limits from a per station basis to a per
candidate basis, because nothing in law obligates
the COMELEC to support its Resolutions with
empirical data, as said airtime limit was a policy
decision dictated by the legislature itself, which had
CONSTI LAW II ACJUCO 119
the necessary empirical and other data upon which
to base said policy decision.
The COMELEC then points out that Section 2
(7),18 Article IX (C) of the Constitution empowers it
to recommend to Congress effective measures to
minimize election spending and in furtherance of
such constitutional power, the COMELEC issued
the questioned Resolutions, in faithful
implementation of the legislative intent and
objectives of the Fair Election Act.
The COMELEC also dismisses Senator Cayetano's
fears that unauthorized or inadvertent inclusion of
his name, initial, image, brand, logo, insignia and/or
symbol in tandem advertisements will be charged
against his airtime limits by pointing out that what
will be counted against a candidate's airtime and
expenditures are those advertisements that have
been paid for or donated to them to which the
candidate has given consent.
With regard to the attack that the total aggregate
airtime limit constitutes prior restraint or undue
abridgement of the freedom of speech and
expression, the COMELEC counters that "the
Resolutions enjoy constitutional and congressional
imprimatur. It is the Constitution itself that imposes
the restriction on the freedoms of speech and
expression, during election period, to promote an
important and significant governmental interest,
which is to equalize, as far as practicable, the
situation of rich and poor candidates by preventing
the former from enjoying the undue advantage
offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there
is no impairment of the people's right to information
on matters of public concern, because in this case,
the COMELEC is not withholding access to any
public record.
On April 16, 2013, this Court issued a Temporary
Restraining Order20 (TRO) in view of the urgency
involved and to prevent irreparable injury that may
be caused to the petitioners if respondent
COMELEC is not enjoined from implementing
Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent
Motion to Lift Temporary Restraining Order and
Motion for Early Resolution of the Consolidated
Petitions.21

On May 8, 2013, petitioners ABS-CBN and the KBP
filed its Opposition/Comment22 to the said Motion.
Not long after, ABC followed suit and filed its own
Opposition to the Motion23 filed by the respondent.
In the interim, respondent filed a Second
Supplemental Comment and Opposition24 dated
April 8, 2013.
In the Second Supplemental Comment and
Opposition, respondent delved on points which
were not previously discussed in its earlier
Comment and Supplemental Comment, particularly
those raised in the petition filed by petitioner ABS-
CBN and KBP.
Respondent maintains that certiorari in not the
proper remedy to question the Constitutionality of
the assailed Resolutions and that petitioners ABS-
CBN and KBP have no locus standi to file the
present petition.
Respondent posits that contrary to the contention of
petitioners, the legislative history of R.A. No. 9006
conclusively shows that congress intended the
airtime limits to be computed on a "per candidate"
and not on a "per station" basis. In addition, the
legal duty of monitoring lies with the COMELEC.
Broadcast stations are merely required to submit
certain documents to aid the COMELEC in
ensuring that candidates are not sold airtime in
excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior
notice requirement is a mechanism designed to
inform the COMELEC of the appearances or
guesting of candidates in bona fide news
broadcasts. It is for monitoring purposes only, not
censorship. It does not control the subject matter of
news broadcasts in anyway. Neither does it prevent
media outlets from covering candidates in news
interviews, news events, and news documentaries,
nor prevent the candidates from appearing thereon.
As for the right to reply, respondent insists that the
right to reply provision cannot be considered a prior
restraint on the freedoms of expression, speech
and the press, as it does not in any way restrict the
airing of bona fide new broadcasts. Media entities
are free to report any news event, even if it should
turn out to be unfavourable to a candidate or party.
The assailed Resolutions merely give the candidate
or party the right to reply to such charges published
or aired against them in news broadcasts.
CONSTI LAW II ACJUCO 120
Moreover, respondent contends that the imposition
of the penalty of suspension and revocation of
franchise or permit for the sale or donation of
airtime beyond the allowable limits is sanctioned by
the Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013.
On June 4, 2013, the Court issued a Resolution25
consolidating the case with the rest of the petitions
and requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third
Supplemental Comment and Opposition.26
Therein, respondent stated that the petition filed by
RMN repeats the issues that were raised in the
previous petitions. Respondent, likewise, reiterated
its arguments that certiorari in not the proper
remedy to question the assailed resolutions and
that RMN has no locus standi to file the present
petition. Respondent maintains that the arguments
raised by RMN, like those raised by the other
petitioners are without merit and that RMN is not
entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present
petit10ns are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013
national and local elections, nevertheless the
issues raised by the petitioners have not been
rendered moot and academic by the conclusion of
the 2013 elections. Considering that the matters
elevated to the Court for resolution are susceptible
to repetition in the conduct of future electoral
exercises, these issues will be resolved in the
present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally
take a backseat when issues of substantial and
transcendental importance are presented before
the Court. So the Court does again in this particular
case.
Proper Remedy
Respondent claims that certiorari and prohibition
are not the proper remedies that petitioners have
taken to question the assailed Resolutions of the
COMELEC. Technically, respondent may have a
point. However, considering the very important and

pivotal issues raised, and the limited time, such
technicality should not deter the Court from having
to make the final and definitive pronouncement that
everyone else depends for enlightenment and
guidance. "[T]his Court has in the past seen fit to
step in and resolve petitions despite their being the
subject of an improper remedy, in view of the public
importance of the tile issues raised therein.27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before
the Court, the issue of locus standi is raised to
question the personality of the parties invoking the
Court's jurisdiction. The Court has routinely made
reference to a liberalized stance when it comes to
petitions raising issues of transcendental
importance to the country. Invariably, after some
discussions, the Court would eventually grant
standing.28
In this particular case, respondent also questions
the standing of the petitioners. We rule for the
petitioners. For petitioner-intervenor Senator
Cayetano, he undoubtedly has standing since he is
a candidate whose ability to reach out to the
electorate is impacted by the assailed Resolutions.
For the broadcast companies, they similarly have
the standing in view of the direct injury they may
suffer relative to their ability to carry out their tasks
of disseminating information because of the
burdens imposed on them. Nevertheless, even in
regard to the broadcast companies invoking the
injury that may be caused to their customers or the
public - those who buy advertisements and the
people who rely on their broadcasts - what the
Court said in White Light Corporation v. City of
Manila29 may dispose of the question. In that case,
there was an issue as to whether owners of
establishments offering "wash-up" rates may have
the requisite standing on behalf of their patrons'
equal protection claims relative to an ordinance of
the City of Manila which prohibited "short-time" or
"wash-up" accommodation in motels and similar
establishments. The Court essentially condensed
the issue in this manner: "[T]he crux of the matter is
whether or not these establishments have the
requisite standing to plead for protection of their
patrons' equal protection rights."30 The Court then
went on to hold:
CONSTI LAW II ACJUCO 121
Standing or locus standi is the ability of a party to
demonstrate to the court sufficient connection to
and harm from the law or action challenged to
support that party's participation in the case. More
importantly, the doctrine of standing is built on the
principle of separation of powers, sparing as it does
unnecessary interference or invalidation by the
judicial branch of the actions rendered by its co-
equal branches of government.
The requirement of standing is a core component of
the judicial system derived directly from the
Constitution. The constitutional component of
standing doctrine incorporates concepts which
concededly are not susceptible of precise definition.
In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious
cause, as well as the standard test for a petitioner's
standing. In a similar vein, the United States
Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing
requirements of injury, causation, and redressability
in Allen v. Wright.
Nonetheless, the general rules on standing admit of
several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and,
especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of third
party standing as an exception and the overbreadth
doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples
where parties-ininterest were allowed standing to
advocate or invoke the fundamental due process or
equal protection claims of other persons or classes
of persons injured by state action. x x x
xxxx
Assuming arguendo that petitioners do not have a
relationship with their patrons for the former to
assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect
permitted to raise the rights of third parties.
Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine
applies when a statute needlessly restrains even
constitutionally guaranteed rights. In this case, the

petitioners claim that the Ordinance makes a
sweeping intrusion into the right to liberty of their
clients. We can see that based on the allegations in
the petition, the Ordinance suffers from
overbreadth.
We thus recognize that the petitioners have a right
to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate"
time frame.31
If in regard to commercial undertakings, the owners
may have the right to assert a constitutional right of
their clients, with more reason should
establishments which publish and broadcast have
the standing to assert the constitutional freedom of
speech of candidates and of the right to information
of the public, not to speak of their own freedom of
the press. So, we uphold the standing of petitioners
on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a
radical departure from the previous COMELEC
resolutions relative to the airtime limitations on
political advertisements. This essentially consists in
computing the airtime on an aggregate basis
involving all the media of broadcast
communications compared to the past where it was
done on a per station basis. Thus, it becomes
immediately obvious that there was effected a
drastic reduction of the allowable minutes within
which candidates and political parties would be
able to campaign through the air. The question is
accordingly whether this is within the power of the
COMELEC to do or not. The Court holds that it is
not within the power of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime
limits directly flows from the Fair Election Act (R.A.
No. 9006 [2001])32 - one hundred (120) minutes of
television advertisement and one-hundred· eighty
(180) minutes for radio advertisement. For the 2004
elections, the respondent COMELEC promulgated
Resolution No. 652033 implementing the airtime
limits by applying said limitation on a per station
basis.34 Such manner of determining airtime limits
was likewise adopted for the 2007 elections,
through Resolution No. 7767.35 In the 2010
CONSTI LAW II ACJUCO 122
elections, under Resolution No. 8758,36 the same
was again adopted. But for the 2013 elections, the
COMELEC, through Resolution No. 9615, as
amended by Resolution No. 9631, chose to
aggregate the total broadcast time among the
different broadcast media, thus: Section 9.
Requirements and/or Limitations on the Use of
Election Propaganda through Mass Media. - All
parties and bona fide candidates shall have equal
access to media time and space for their election
propaganda during the campaign period subject to
the following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or
party may use for their broadcast advertisements or
election propaganda shall be, as follows:
For Candidates/Registered Political parties for a
National Elective Position
Not more than an aggregate total of one hundred
(120) minutes of television advertising, whether
appearing on national, regional, or local, free or
cable television, and one hundred eighty (180)
minutes of radio advertising, whether airing on
national, regional, or local radio, whether by
purchase or donation
For Candidates/Registered Political parties for a
Local Elective Position
Not more than an aggregate total of sixty (60)
minutes of television advertising, whether
appearing on national, regional, or local, free or
cable television, and ninety (90) minutes of radio
advertising, whether airing on national, regional, or
local radio, whether by purchase or donation.
In cases where two or more candidates or parties
whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of
graphical representations are displayed, exhibited,
used, or mentioned together in the broadcast
election propaganda or advertisements, the length
of time during which they appear or are being
mentioned or promoted will be counted against the
airtime limits allotted for the said candidates or
parties and the cost of the said advertisement will
likewise be considered as their expenditures,
regardless of whoever paid for the advertisements
or to whom the said advertisements were donated.
x x x x37

Corollarily, petitioner-intervenor, Senator Cayetano,
alleges:
6.15. The change in the implementation of Section
6 of R.A. 9006 was undertaken by respondent
Comelec without consultation with the candidates
for the 2013 elections, affected parties such as
media organizations, as well as the general public.
Worse, said change was put into effect without
explaining the basis therefor and without showing
any data in support of such change. Respondent
Comelec merely maintained that such action "is
meant to level the playing field between the
moneyed candidates and those who don i have
enough resources," without particularizing the
empirical data upon which such a sweeping
statement was based. This was evident in the
public hearing held on 31 January 2013 where
petitioner GMA, thru counsel, explained that no
empirical data on he excesses or abuses of
broadcast media were brought to the attention of
the public by respondent Comelec, or even stated
in the Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify
meaning we can expand if we want to. But the
authority of the Commission is if we do not want to
amplify and we think that the 120 or 180 is okay we
cannot be compelled to amplify. We think that 120
or 180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis
of the resolution is found in the law and the law has
been enterpreted (sic) before in 2010 to be 120 per
station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is
with the Commission on Elections. Nobody can
encroach in our right to amplify. Now, if in 2010 the
Commission felt that per station or per network is
the rule then that is the prerogative of the
Commission then they could amplify it to expand it.
If the current Commission feels that 120 is enough
for the particular medium like TV and 180 for radio,
CONSTI LAW II ACJUCO 123
that is our prerogative. How can you encroach and
what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the
Honorable Commission to regulate Your Honor, we
are just raising our concern on the manner of
regulation because as it is right now, there is a
changing mode or sentiments of the Commission
and the public has the right to know, was there
rampant overspending on political ads in 2010, we
were not informed Your Honor. Was there abuse of
the media in 2010, we were not informed Your
Honor. So we would like to know what is the basis
of the sudden change in this limitation, Your
Honor .. And law must have a consistent
interpretation that [is]our position, Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this
representation counsel, is that if the Constitution
allows us to regulate and then it gives us the
prerogative to amplify then the prerogative to
amplify you should leave this to the discretion of the
Commission. Which means if previous
Commissions felt that expanding it should be part
of our authority that was a valid exercise if we
reduce it to what is provided for by law which is
120-180 per medium, TV, radio, that is also within
the law and that is still within our prerogative as
provided for by the Constitution. If you say we have
to expose the candidates to the public then I think
the reaction should come, the negative reaction
should come from the candidates not from the
media, unless you have some interest to protect
directly. Is there any interest on the part of the
media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this
election Your Honor and we have been constantly
(sic) as the resolution says and even in the part
involved because you will be getting some
affirmative action time coming from the media itself
and Comelec time coming from the media itself. So
we could like to be both involved in the whole
process of the exercise of the freedom of suffrage
Your Honor.
Chairman Brillantes

Yes, but the very essence of the Constitutional
provision as well as the provision of 9006 is actually
to level the playing field. That should be the
paramount consideration. If we allow everybody to
make use of all their time and all radio time and TV
time then there will be practically unlimited use of
the mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data
to support that there was an unlimited and abuse of
a (sic) political ads in the mass media that became
the basis of this change in interpretation Your
Honor? We would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none
Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was
some advantage given to those who took ... who
had the more moneyed candidates took advantage
of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor
candidates, there are rich candidates. No amount
of law or regulation can even level the playing filed
(sic) as far as the economic station in life of the
candidates are concern (sic) our Honor.38
Given the foregoing observations about what
happened during the hearing, Petitioner-Intervenor
went on to allege that:
6.16. Without any empirical data upon which to
base the regulatory measures in Section 9 (a),
CONSTI LAW II ACJUCO 124
respondent Comelec arbitrarily changed the rule
from per station basis to aggregate airtime basis.
Indeed, no credence should be given to the cliched
explanation of respondent Comelec (i.e. leveling
the playing field) in its published statements which
in itself is a mere reiteration of the rationale for the
enactment of the political ad ban of Republic Act
No. 6646, and which has likewise been foisted
when said political ad ban was lifted by R.A.
9006.39
From the foregoing, it does appear that the
COMELEC did not have any other basis for coming
up with a new manner of determining allowable
time limits except its own idea as to what should be
the maximum number of minutes based on its
exercise of discretion as to how to level the playing
field. The same could be encapsulized in the
remark of the COMELEC Chairman that "if the
Constitution allows us to regulate and then it gives
us the prerogative to amplify then the prerogative to
amplify you should leave this to the discretion of the
Commission."40
The Court could not agree with what appears as a
nonchalant exercise of discretion, as expounded
anon.
b. COMELEC is duty bound to come up with
reasonable basis for changing the interpretation
and implementation of the airtime limits
There is no question that the COMELEC is the
office constitutionally and statutorily authorized to
enforce election laws but it cannot exercise its
powers without limitations - or reasonable basis. It
could not simply adopt measures or regulations just
because it feels that it is the right thing to do, in so
far as it might be concerned. It does have
discretion, but such discretion is something that
must be exercised within the bounds and intent of
the law. The COMELEC is not free to simply
change the rules especially if it has consistently
interpreted a legal provision in a particular manner
in the past. If ever it has to change the rules, the
same must be properly explained with sufficient
basis.
Based on the transcripts of the hearing conducted
by the COMELEC after it had already promulgated
the Resolution, the respondent did not fully explain
or justify the change in computing the airtime
allowed candidates and political parties, except to
make reference to the need to "level the playing

field." If the "per station" basis was deemed enough
to comply with that objective in the past, why
should it now be suddenly inadequate? And, the
short answer to that from the respondent, in a
manner which smacks of overbearing exercise of
discretion, is that it is within the discretion of the
COMELEC. As quoted in the transcript, "the right to
amplify is with the COMELEC. Nobody can
encroach in our right to amplify. Now, if in 2010 the
Commission felt that per station or per network is
the rule then that is the prerogative of the
Commission then they could amplify it to expand it.
If the current Commission feels that 120 is enough
for the particular medium like TV and 180 for radio,
that is our prerogative. How can you encroach and
what is unconstitutional about it?"41
There is something basically wrong with that
manner of explaining changes in administrative
rules. For one, it does not really provide a good
basis for change. For another, those affected by
such rules must be given a better explanation why
the previous rules are no longer good enough. As
the Court has said in one case:
While stability in the law, particularly in the
business field, is desirable, there is no demand that
the NTC slavishly follow precedent. However, we
think it essential, for the sake of clarity and
intellectual honesty, that if an administrative agency
decides inconsistently with previous action, that it
explain thoroughly why a different result is
warranted, or ?f need be, why the previous
standards should no longer apply or should be
overturned. Such explanation is warranted in order
to sufficiently establish a decision as having rational
basis. Any inconsistent decision lacking thorough,
ratiocination in support may be struck down as
being arbitrary. And any decision with absolutely
nothing to support it is a nullity.42
What the COMELEC came up with does not
measure up to that level of requirement and
accountability which elevates administrative rules to
the level of respectability and acceptability. Those
governed by administrative regulations are entitled
to a reasonable and rational basis for any changes
in those rules by which they are supposed to live
by, especially if there is a radical departure from the
previous ones.
c. The COMELEC went beyond the authority
granted it by the law in adopting "aggregate" basis
in the determination of allowable airtime
CONSTI LAW II ACJUCO 125
The law, which is the basis of the regulation subject
of these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered
political party for a nationally elective office shall be
entitled to not more than one hundred twenty (120)
minutes of television advertisement and one
hundred eighty (180) minutes of radio
advertisement whether by purchase or donation.
(b) Each bona fide candidate or registered political
party for a locally elective office shall be entitled to
not more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x
xx
The law, on its face, does not justify a conclusion
that the maximum allowable airtime should be
based on the totality of possible broadcast in all
television or radio stations. Senator Cayetano has
called our attention to the legislative intent relative
to the airtime allowed - that it should be on a "per
station" basis.43
This is further buttressed by the fact that the Fair
Election Act (R.A. No. 9006) actually repealed the
previous provision, Section ll(b) of Republic Act No.
6646,44 which prohibited direct political
advertisements -the so-called "political ad ban." If
under the previous law, no candidate was allowed
to directly buy or procure on his own his broadcast
or print campaign advertisements, and that he must
get it through the COMELEC Time or COMELEC
Space, R.A. No. 9006 relieved him or her from that
restriction and allowed him or her to broadcast time
or print space subject to the limitations set out in
the law. Congress, in enacting R.A. No. 9006, felt
that the previous law was not an effective and
efficient way of giving voice to the people. Noting
the debilitating effects of the previous law on the
right of suffrage and Philippine democracy,
Congress decided to repeal such rule by enacting
the Fair Election Act.
In regard to the enactment of the new law, taken in
the context of the restrictive nature of the previous
law, the sponsorship speech of Senator Raul Roco
is enlightening:
The bill seeks to repeal Section 85 of the Omnibus
Election Code and Sections 10 and 11 of RA 6646.
In view of the importance of their appeal in

connection with the thrusts of the bill, I hereby
quote these sections in full:
"SEC. 85. Prohibited forms of election propaganda.
- It shall be unlawful:
"(a) To print, publish, post or distribute any poster,
pamphlet, circular, handbill, or printed matter urging
voters to vote for or against any candidate unless
they hear the names and addresses of the printed
and payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or
display any billboard, tinplate-poster, balloons and
the like, of whatever size, shape, form or kind,
advertising for or against any candidate or political
party;
"(c) To purchase, manufacture, request, distribute
or accept electoral propaganda gadgets, such as
pens, lighters, fans of whatever nature, flashlights,
athletic goods or materials, wallets, shirts, hats,
bandannas, matches, cigarettes and the like,
except that campaign supporters accompanying a
candidate shall be allowed to wear hats and/or
shirts or T-shirts advertising a candidate;
"(d) To show or display publicly any advertisement
or propaganda for or against any candidate by
means of cinematography, audio-visual units or
other screen projections except telecasts which
may be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station
to sell or give free of charge airtime for campaign
and other political purposes except as authorized in
this Code under the rules and regulations
promulgated by the Commission pursuant thereto;
"Any prohibited election propaganda gadget or
advertisement shall be stopped, confiscated or tom
down by the representative of the Commission
upon specific authority of the Commission." "SEC.
10. Common Poster Areas. - The Commission shall
designate common poster areas in strategic public
places such as markets, barangay centers and the
like wherein candidates can post, display or exhibit
election propaganda to announce or further their
candidacy.
"Whenever feasible, common billboards may be
installed by the Commission and/or non-partisan
private or civic organizations which the Commission
may authorize whenever available, after due notice
CONSTI LAW II ACJUCO 126
and hearing, in strategic areas where it may readily
be seen or read, with the heaviest pedestrian
and/or vehicular traffic in the city or municipality.
The space in such common poster areas or
billboards shall be allocated free of charge, if
feasible, equitably and impartially among the
candidates in the province, city or municipality.
"SEC. 11. Prohibite,d 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: (a) to
draw, paint, inscribe, write, post, display or puolicly
exhibit any election propaganda in any place,
whether private or public, except in common poster
areas and/or billboards provided in the immediately
preceding section, at the candidate's own
residence, or at the campaign headquarters of the
candidate or political party: Provided, That such
posters or election propaganda shall in no case
exceed two (2) feet by three (3) feet in area;
Provided, further, That at the site of and on the
occasion of a public meeting or rally, streamers, not
more than two (2) feet and not exceeding three (3)
feet by eight (8) each may be displayed five (5)
days before the date of the meeting or rally, and
shall be removed within twenty-four (24) hours after
said meeting or rally; and
"(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
give for 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 Big. 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."
The repeal of the provision on the Common Poster
Area implements the strong recommendations of
the Commission on Elections during the hearings. It
also seeks to apply the doctrine enunciated by the
Supreme Court in the case of Blo Umpar Adiong
vs. Commission on Elections, 207 SCRA 712, 31
March 1992. Here a unanimous Supreme Court
ruled: The COMELEC's prohibition on the posting
of decals and stickers on "mobile" places whether
public or private except [in] designated areas
provided for by the COMELEC itself is null and void
on constitutional grounds.

For the foregoing reasons, we commend to our
colleagues the early passage of Senate Bill No.
1742. In so doing, we move one step towards
further ensuring "free, orderly, honest, peaceful and
credible elections" as mandated by the
Constitution.45
Given the foregoing background, it is therefore
ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by
which the candidates, political parties, citizens and
other stake holders in the periodic electoral
exercise may be given a chance to fully explain and
expound on their candidacies and platforms of
governance, and for the electorate to be given a
chance to know better the personalities behind the
candidates. In this regard, the media is also given a
very important part in that undertaking of providing
the means by which the political exercise becomes
an interactive process. All of these would be
undermined and frustrated with the kind of
regulation that the respondent came up with.
The respondent gave its own understanding of the
import of the legislative deliberations on the
adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows
that Congress intended to impose the per
candidate or political party aggregate total airtime
limits on political advertisements and election
propaganda. This is evidenced by the dropping of
the "per day per station" language embodied in
both versions of the House of Representatives and
Senate bills in favour of the "each candidate" and
"not more than" limitations now found in Section 6
of R.A. 9006.
The pertinent portions of House Bill No. 9000 and
Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby
amended to read as follows:
Sec. 86. Regulation of Election Propaganda
Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate and
political party, whether by purchase or by donation,
shall be limited to five (5) minutes per day in each
CONSTI LAW II ACJUCO 127
television, cable television and radio stations during
the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time.
-All registered parties and bona fide candidates
shall have equal access to media space and time.
The following guidelines may be amplified by the
COMELEC.
xxx xxx xxx
2. The total airtime available for each registered
party and bona fide candidate whether by purchase
or donation shall not exceed a total of one (1)
minute per day per television or radio station.
(Emphasis supplied.)
As Section 6 of R.A. 9006 is presently worded, it
can be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per
candidate or party basis. Otherwise, if the
legislature intended the computation to be on per
station basis, it could have left the original "per day
per station" formulation.46
The Court does not agree. It cannot bring itself to
read the changes in the bill as disclosing an intent
that the COMELEC wants this Court to put on the
final language of the law. If anything, the change in
language meant that the computation must not be
based on a "per day" basis for each television or
radio station. The same could not therefore lend
itself to an understanding that the total allowable
time is to be done on an aggregate basis for all
television or radio stations. Clearly, the respondent
in this instance went beyond its legal mandate
when it provided for rules beyond what was
contemplated by the law it is supposed to
implement. As we held in Lakin, Jr. v. Commission
on Elections:47
The COMELEC, despite its role as the
implementing arm of the Government in the
enforcement and administration of all laws and
regulations relative to the conduct of an election,
has neither the authority nor the license to expand,
extend, or add anything to the law it seeks to
implement thereby. The IRRs the COMELEC
issued for that purpose should always be in accord
with the law to be implemented, and should not
override, supplant, or modify the law. It is basic that

the IRRs should remain consistent with the law they
intend to carry out.
Indeed, administrative IRRs adopted by a particular
department of the Government under legislative
authority must be in harmony with the provisions of
the law, and should be for the sole purpose of
carrying the law's general provisions into effect.
The law itself cannot be expanded by such IRRs,
because an administrative agency cannot amend
an act of Congress.48
In the case of Lakin, Jr., the COMELEC's
explanation that the Resolution then in question did
not add anything but merely reworded and
rephrased the statutory provision did not persuade
the Court. With more reason here since the
COMELEC not only reworded or rephrased the
statutory provision - it practically replaced it with its
own idea of what the law should be, a matter that
certainly is not within its authority. As the Court said
in Villegas v. Subido:49
One last word. Nothing is better settled in the law
than that a public official exercises power, not
rights. The government itself is merely an agency
through which the will of the state is expressed and
enforced. Its officers therefore are likewise agents
entrusted with the responsibility of discharging its
functions. As such there is no presumption that
they are empowered to act. There must be a
delegation of such authority, either express or
implied. In the absence of a valid grant, they are
devoid of power. What they do suffers from a fatal
infirmity. That principle cannot be sufficiently
stressed. In the appropriate language of Chief
Justice Hughes: "It must be conceded that
departmental zeal may not be permitted to outrun
the authority conferred by statute." Neither the high
dignity of the office nor the righteousness of the
motive then is an acceptable substitute. Otherwise
the rule of law becomes a myth. Such an
eventuality, we must take all pains to avoid.50
So it was then. So does the rule still remains the
same.
d. Section 9 (a) of COMELEC Resolution No. 9615
on airtime limits also goes against the constitutional
guaranty of freedom of expression, of speech and
of the press
The guaranty of freedom to speak is useless
without the ability to communicate and disseminate
CONSTI LAW II ACJUCO 128
what is said. And where there is a need to reach a
large audience, the need to access the means and
media for such dissemination becomes critical. This
is where the press and broadcast media come
along. At the same time, the right to speak and to
reach out would not be meaningful if it is just a
token ability to be heard by a few. It must be
coupled with substantially reasonable means by
which the communicator and the audience could
effectively interact. Section 9 (a) of COMELEC
Resolution No. 9615, with its adoption of the
"aggregate-based" airtime limits unreasonably
restricts the guaranteed freedom of speech and of
the press.
Political speech is one of the most important
expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the
press are at the core of civil liberties and have to be
protected at all costs for the sake of democracy."51
Accordingly, the same must remain unfettered
unless otherwise justified by a compelling state
interest.
In regard to limitations on political speech relative
to other state interests, an American case
observed:
A restriction on the amount of money a person or
group can spend on political communication during
a campaign necessarily reduces the quantity of
expression by restricting the number of issues
discussed, the depth of their exploration, and the
size of the audience reached. This is because
virtually every means of communicating ideas in
today's mass society requires the expenditure of
money. The distribution of the humblest handbill or
leaflet entails printing, paper, and circulation costs.
Speeches and rallies generally necessitate hiring a
hall and publicizing the event. The electorate's
increasing dependence on television, radio, and
other mass media for news and information has
made these expensive modes of communication
indispensable instruments of effective political
speech.
The expenditure limitations contained in the Act
represent substantial, rather than merely theoretical
restraints on the quantity and diversity of political
speech. The $1,000 ceiling on spending "relative to
a clearly identified candidate," 18 U.S.C. § 608(e)(l)
(1970 ed., Supp. IV), would appear to exclude all
citizens and groups except candidates, political
parties, and the institutional press from any

significant use of the most effective modes of
communication. Although the Act's limitations on
expenditures by campaign organizations and
political parties provide substantially greater room
for discussion and debate, they would have
required restrictions in the scope of a number of
past congressional and Presidential campaigns and
would operate to constrain campaigning by
candidates who raise sums in excess of the
spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615
comes up with what is challenged as being an
unreasonable basis for determining the allowable
air time that candidates and political parties may
avail of. Petitioner GMA came up with its analysis
of the practical effects of such a regulation:
5.8. Given the reduction of a candidate's airtime
minutes in the New Rules, petitioner GMA
estimates that a national candidate will only have
120 minutes to utilize for his political
advertisements in television during the whole
campaign period of 88 days, or will only have 81.81
seconds per day TV exposure allotment. If he
chooses to place his political advertisements in the
3 major TV networks in equal allocation, he will only
have 27.27 seconds of airtime per network per day.
This barely translates to 1 advertisement spot on a
30-second spot basis in television.
5.9. With a 20-hour programming per day and
considering the limits of a station's coverage, it will
be difficult for 1 advertising spot to make a sensible
and feasible communication to the public, or in
political propaganda, to "make known [a
candidate's] qualifications and stand on public
issues".
5.10 If a candidate loads all of his 81.81 seconds
per day in one network, this will translate to barely
three 30-second advertising spots in television on a
daily basis using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV
audience measurement in Mega Manila, the
commercial advertisements in television are viewed
by only 39.2% of the average total day household
audience if such advertisements are placed with
petitioner GMA, the leading television network
nationwide and in Mega Manila. In effect, under the
restrictive aggregate airtime limits in the New
Rules, the three 30-second political advertisements
of a candidate in petitioner GMA will only be
CONSTI LAW II ACJUCO 129
communicated to barely 40% of the viewing
audience, not even the voting population, but only
in Mega Manila, which is defined by AGB Nielsen
Philippines to cover Metro Manila and certain urban
areas in the provinces of Bulacan, Cavite, Laguna,
Rizal, Batangas and Pampanga. Consequently,
given the voting population distribution and the
drastically reduced supply of airtime as a result of
the New Rules' aggregate airtime limits, a national
candidate will be forced to use all of his airtime for
political advertisements in television only in urban
areas such as Mega Manila as a political campaign
tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila
or other urban areas deserve to be informed of the
candidates in the national elections, and the said
candidates also enjoy the right to be voted upon by
these informed populace.53
The Court agrees. The assailed rule on "aggregate-
based" airtime limits is unreasonable and arbitrary
as it unduly restricts and constrains the ability of
candidates and political parties to reach out and
communicate with the people. Here, the adverted
reason for imposing the "aggregate-based" airtime
limits - leveling the playing field - does not
constitute a compelling state interest which would
justify such a substantial restriction on the freedom
of candidates and political parties to communicate
their ideas, philosophies, platforms and programs
of government. And, this is specially so in the
absence of a clear-cut basis for the imposition of
such a prohibitive measure. In this particular
instance, what the COMELEC has done is
analogous to letting a bird fly after one has clipped
its wings.
It is also particularly unreasonable and whimsical to
adopt the aggregate-based time limits on broadcast
time when we consider that the Philippines is not
only composed of so many islands. There are also
a lot of languages and dialects spoken among the
citizens across the country. Accordingly, for a
national candidate to really reach out to as many of
the electorates as possible, then it might also be
necessary that he conveys his message through
his advertisements in languages and dialects that
the people may more readily understand and relate
to. To add all of these airtimes in different dialects
would greatly hamper the ability of such candidate
to express himself - a form of suppression of his
political speech.

Respondent itself states that "[t]elevision is
arguably the most costeffective medium of
dissemination. Even a slight increase in television
exposure can significantly boost a candidate's
popularity, name recall and electability."54 If that be
so, then drastically curtailing the ability of a
candidate to effectively reach out to the electorate
would unjustifiably curtail his freedom to speak as a
means of connecting with the people.
Finally on this matter, it is pertinent to quote what
Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: "In the First
Amendment, the Founding Fathers gave the free
press the protection it must have to fulfill its
essential role in our democracy. The press was to
serve the governed, not the governors. The
Government's power to censor the press was
abolished so that the press would remain forever
free to censure the Government. The press was
protected so that it could bare the secrets of
government and inform the people. Only a free and
unrestrained press can effectively expose
deception in government."55
In the ultimate analysis, when the press is silenced,
or otherwise muffled in its undertaking of acting as
a sounding board, the people ultimately would be
the victims.
e. Section 9 (a) of Resolution 9615 is violative of
the people's right to suffrage
Fundamental to the idea of a democratic and
republican state is the right of the people to
determine their own destiny through the choice of
leaders they may have in government. Thus, the
primordial importance of suffrage and the
concomitant right of the people to be adequately
informed for the intelligent exercise of such
birthright. It was said that:
x x x As long as popular government is an end to
be achieved and safeguarded, suffrage, whatever
may be the modality and form devised, must
continue to be the means by which the great
reservoir of power must be emptied into the
receptacular agencies wrought by the people
through their Constitution in the interest of good
government and the common weal. Republicanism,
in so far as it implies the adoption of a
representative type of government, necessarily
points to the enfranchised citizen as a particle of
popular sovereignty and as the ultimate source of
CONSTI LAW II ACJUCO 130
the established authority. He has a voice in his
Government and whenever possible it is the
solemn duty of the judiciary, when called upon to
act in justifiable cases, to give it efficacy and not to
stifle or frustrate it. This, fundamentally, is the
reason for the rule that ballots should be read and
appreciated, if not with utmost, with reasonable,
liberality. x x x56 It has also been said that "[ c ]
ompetition in ideas and governmental policies is at
the core of our electoral process and of the First
Amendment freedoms."57 Candidates and political
parties need adequate breathing space - including
the means to disseminate their ideas. This could
not be reasonably addressed by the very restrictive
manner by which the respondent implemented the
time limits in regard to political advertisements in
the broadcast media.
f. Resolution No. 9615 needs prior hearing before
adoption
The COMELEC promulgated Resolution No. 9615
on January 15, 2013 then came up with a public
hearing on January 31, 2013 to explain what it had
done, particularly on the aggregate-based air time
limits. This circumstance also renders the new
regulation, particularly on the adoption of the
aggregate-based airtime limit, questionable. It must
not be overlooked that the new Resolution
introduced a radical change in the manner in which
the rules on airtime for political advertisements are
to be reckoned. As such there is a need for
adequate and effective means by which they may
be adopted, disseminated and implemented. In this
regard, it is not enough that they be published - or
explained - after they have been adopted.
While it is true that the COMELEC is an
independent office and not a mere administrative
agency under the Executive Department, rules
which apply to the latter must also be deemed to
similarly apply to the former, not as a matter of
administrative convenience but as a dictate of due
process. And this assumes greater significance
considering the important and pivotal role that the
COMELEC plays in the life of the nation. Thus,
whatever might have been said in Commissioner of
Internal Revenue v. Court of Appeals,58 should
also apply mutatis mutandis to the COMELEC
when it comes to promulgating rules and
regulations which adversely affect, or impose a
heavy and substantial burden on, the citizenry in a
matter that implicates the very nature of
government we have adopted:

It should be understandable that when an
administrative rule is merely interpretative in nature,
its applicability needs nothing further than its bare
issuance for it gives no real consequence more
than what the law itself has already prescribed.
When, upon the other hand, the administrative rule
goes beyond merely providing for the means that
can facilitate or render least cumbersome the
implementation of the law but substantially adds to
or increases the burden of those governed, it
behooves the agency to accord at least to those
directly affected a chance to be heard, and
thereafter to be duly informed, before that new
issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering
the circumstances under which it has been issued,
convinces us that the circular cannot be viewed
simply as a corrective measure (revoking in the
process the previous holdings of past
Commissioners) or merely as construing Section
142(c)(l) of the NIRC, as amended, but has, in fact
and most importantly, been made in order to place
"Hope Luxury," "Premium More" and "Champion"
within the classification of locally manufactured
cigarettes bearing foreign brands and to thereby
have them covered by RA 7654. Specifically, the
new law would have its amendatory provisions
applied to locally manufactured cigarettes which at
the time of its effectivity were not so classified as
bearing foreign brands. x x x In so doing, the BIR
not simply interpreted the law; verily, it legislated
under its quasi-legislative authority. The due
observance of the requirements of notice, of
hearing, and of publication should not have been
then ignored.59
For failing to conduct prior hearing before coming
up with Resolution No. 9615, said Resolution,
specifically in regard to the new rule on aggregate
airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an
unreasonable burden on the broadcast industry
It is a basic postulate of due process, specifically in
relation to its substantive component, that any
governmental rule or regulation must be reasonable
in its operations and its impositions. Any
restrictions, as well as sanctions, must be
reasonably related to the purpose or objective of
the government in a manner that would not work
unnecessary and unjustifiable burdens on the
CONSTI LAW II ACJUCO 131
citizenry. Petitioner GMA assails certain
requirements imposed on broadcast stations as
unreasonable. It explained:
5.40 Petitioner GMA currently operates and
monitors 21 FM and AM radio stations nationwide
and 8 originating television stations (including its
main transmitter in Quezon City) which are
authorized to dechain national programs for airing
and insertion of local content and advertisements.
5.41 In light of the New Rules wherein a
candidate's airtime minutes are applied on an
aggregate basis and considering that said Rules
declare it unlawful in Section 7( d) thereof for a
radio, television station or other mass media to sell
or give for free airtime to a candidate in excess of
that allowed by law or by said New Rules:
"Section 7. Prohibited Forms of Election
Propaganda -During the campaign period, it is
unlawful: x x x x x x x x x
(d) for any newspaper or publication, radio,
television or cable 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 election propaganda
purposes to any candidate or party in excess of the
size, duration or frequency authorized by law or
these rules;
xxx xxx xxx
(Emphasis supplied) petitioner GMA submits that
compliance with the New Rules in order to avoid
administrative or criminal liability would be unfair,
cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime
minutes shall be shared by all television and radio
stations, broadcast mass media organizations
would surely encounter insurmountable difficulties
in monitoring the airtime minutes spent by the
numerous candidates for various elective positions,
in real time.
5.44 An inquiry with the National
Telecommunications Commission (NTC) bears out
that there are 372 television stations and 398 AM
and 800 FM radio stations nationwide as of June
2012. In addition, there are 1, 113 cable TV

providers authorized by the NTC to operate within
the country as of the said date.
5.45 Given such numbers of broadcast entities and
the necessity to monitor political advertisements
pursuant to the New Rules, petitioner OMA
estimates that monitoring television broadcasts of
all authorized television station would involve 7,440
manhours per day. To aggravate matters, since a
candidate may also spend his/her broadcasting
minutes on cable TV, additional 281,040 manhours
per day would have to be spent in monitoring the
various channels carried by cable TV throughout
the Philippines. As far as radio broadcasts (both
AM and FM stations) are concerned, around 23,960
manhours per day would have to be devoted by
petitioner OMA to obtain an accurate and timely
determination of a political candidate's remaining
airtime minutes. During the campaign period,
petitioner OMA would have to spend an estimated
27,494,720 manhours in monitoring the election
campaign commercials of the different candidates
in the country.1âwphi1
5.46 In order to carry-out the obligations imposed
by the New Rules, petitioner OMA further estimates
that it would need to engage and train 39,055
additional persons on an eight-hour shift, and
assign them all over the country to perform the
required monitoring of radio, television and cable
TV broadcasts. In addition, it would likewise need
to allot radio, television, recording equipment and
computers, as well as telecommunications
equipment, for this surveillance and monitoring
exercise, thus imputing additional costs to the
company. Attached herewith are the computations
explaining how the afore-said figures were derived
and the conservative assumptions made by
petitioner OMA in reaching said figures, as Annex
"H".
5.47 Needless to say, such time, manpower
requirements, expense and effort would have to be
replicated by each and every radio station to
ensure that they have properly monitored around
33 national and more than 40,000 local candidates'
airtime minutes and thus, prevent any risk of
administrative and criminal liability.60
The Court cannot agree with the contentions of
GMA. The apprehensions of the petitioner appear
more to be the result of a misappreciation of the
real import of the regulation rather than a real and
present threat to its broadcast activities. The Court
CONSTI LAW II ACJUCO 132
is more in agreement with the respondent when it
explained that:
The legal duty of monitoring lies with the Comelec.
Broadcast stations are merely required to submit
certain documents to aid the Comelec in ensuring
that candidates are not sold airtime in excess of the
allowed limits. These documents include: (1)
certified true copies of broadcast logs, certificates
of performance, and certificates of acceptance, or
other analogous record on specified dates (Section
9[d][3], Resolution No. 9615, in relation to Section
6.2, R.A. 9006; and (2) copies of all contract for
advertising, promoting or opposing any political
party or the candidacy of any person for public
office within five (5) days after its signing (Section
6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast
stations to do monitoring, much less monitoring in
real time. GMA grossly exaggerates when it claims
that the non-existent duty would require them to
hire and train an astounding additional 39,055
personnel working on eight-hour shifts all over the
country.61
The Court holds, accordingly, that, contrary to
petitioners' contention, the Reporting Requirement
for the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to
Resolution No. 9631,62 the respondent revised the
third paragraph of Section 9 (a). As revised, the
provision now reads:
Appearance or guesting by a candidate on any
bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the
candidate is incidental to the presentation of the
subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide
news events, including but not limited to events
sanctioned by the Commission on Elections,
political conventions, and similar activities, shall not
be deemed to be broadcast election propaganda
within the meaning of this provision. For purposes
of monitoring by the COMELEC and ensuring that
parties and candidates were afforded equal
opportunities to promote their candidacy, the media
entity shall give prior notice to the COMELEC,
through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region

(NCR), the Education and Information Department
(EID). If such prior notice is not feasible or
practicable, the notice shall be sent within twenty-
four (24) hours from the first broadcast or
publication.1awp++i1 Nothing in the foregoing
sentence shall be construed as relieving
broadcasters, in connection with the presentation of
newscasts, news interviews, news documentaries,
and on-the-spot coverage of news events, from the
obligation imposed upon them under Sections 10
and 14 of these Rules."63
Further, the petitioner in G.R. No. 205374 assails
the constitutionality of such monitoring requirement,
contending, among others, that it constitutes prior
restraint. The Court finds otherwise. Such a
requirement is a reasonable means adopted by the
COMELEC to ensure that parties and candidates
are afforded equal opportunities to promote their
respective candidacies. Unlike the restrictive
aggregate-based airtime limits, the directive to give
prior notice is not unduly burdensome and
unreasonable, much less could it be characterized
as prior restraint since there is no restriction on
dissemination of information before broadcast.
Additionally, it is relevant to point out that in the
original Resolution No. 9615, the paragraph in
issue was worded in this wise:
Appearance or guesting by a candidate on any
bona fide newscast, bona fide news interview, bona
fide news documentary, if the appearance of the
candidate is incidental to the presentation of the
subject or subjects covered by the news
documentary, or on-the-spot coverage of bona fide
news events, including but not limited to events
sanctioned by the Commission on Elections,
political conventions, and similar activities, shall not
be deemed to be broadcast election propaganda
within the meaning of this provision. To determine
whether the appearance or guesting in a program is
bona fide, the broadcast stations or entities must
show that (1) prior approval of the Commission was
secured; and (2) candidates and parties were
afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall
be construed as relieving broadcasters, in
connection with the presentation of newscasts,
news interviews, news documentaries, and on-the-
spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of
these Rules.64
CONSTI LAW II ACJUCO 133
Comparing the original with the revised paragraph,
one could readily appreciate what the COMELEC
had done - to modify the requirement from "prior
approval" to "prior notice." While the former may be
suggestive of a censorial tone, thus inviting a
charge of prior restraint, the latter is more in the
nature of a content-neutral regulation designed to
assist the poll body to undertake its job of ensuring
fair elections without having to undertake any chore
of approving or disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior
notice" requirement as not constitutionally infirm, it
similarly concludes that the "right to reply" provision
is reasonable and consistent with the constitutional
mandate.
Section 14 of Resolution No. 9615, as revised by
Resolution No. 9631, provides:
SECTION 14. Right to Reply. - All registered
political parties, party-list groups or coalitions and
bona fide candidates shall have the right to reply to
charges published or aired against them. The reply
shall be given publicity by the newspaper,
television, and/or radio station which first printed or
aired the charges with the same prominence or in
the same page or section or in the same time slot
as the first statement.
Registered political parties, party-list groups or
coalitions and bona fide candidates may invoke the
right to reply by submitting within a nonextendible
period of forty-eight hours from first broadcast or
publication, a formal verified claim against the
media outlet to the COMELEC, through the
appropriate RED. The claim shall include a detailed
enumeration of the circumstances and occurrences
which warrant the invocation of the right to reply
and must be accompanied by supporting evidence,
such a copy of the publication or recording of the
television or radio broadcast, as the case may be. If
the supporting evidence is not yet available due to
circumstances beyond the power of the claimant,
the latter shall supplement his claim as soon as the
supporting evidence becomes available, without
delay on the part of the claimant. The claimant
must likewise furnish a copy of the verified claim
and its attachments to the media outlet concerned
prior to the filing of the claim with the COMELEC.

The COMELEC, through the RED, shall view the
verified claim within forty-eight ( 48) hours from
receipt thereof, including supporting evidence, and
if circumstances warrant, give notice to the media
outlet involved for appropriate action, which shall,
within forty-eight ( 48) hours, submit its comment,
answer or response to the RED, explaining the
action it has taken to address the claim. The media
outlet must likewise furnish a copy of the said
comment, answer or response to the claimant
invoking the right to reply.
Should the claimant insist that his/her right to reply
was not addressed, he/she may file the appropriate
petition and/or complaint before the Commission on
Elections or its field offices, which shall be
endorsed to the Clerk of Court.
The attack on the validity of the "right to reply"
provision is primarily anchored on the alleged
ground of prior restraint, specifically in so far as
such a requirement may have a chilling effect on
speech or of the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of
the interplay of the relevant interests - the
constitutional mandate granting candidates the right
to reply and the inviolability of the constitutional
freedom of expression, speech, and the press - will
show that the Right to Reply, as provided for in the
Assailed Resolution, is an impermissible restraint
on these fundamental freedoms.
5.146. An evaluation of the factors set forth in
Soriano (for the balancing of interests test) with
respect to the present controversy will show that
the Constitution does not tilt the balance in favor of
the Right to Reply provision in the Assailed
Resolution and the supposed governmental interest
it attempts to further.65
The Constitution itself provides as part of the
means to ensure free, orderly, honest, fair and
credible elections, a task addressed to the
COMELEC to provide for a right to reply.66 Given
that express constitutional mandate, it could be
seen that the Fundamental Law itself has weighed
in on the balance to be struck between the freedom
of the press and the right to reply. Accordingly, one
is not merely to see the equation as purely between
the press and the right to reply. Instead, the
constitutionallymandated desiderata of free,
CONSTI LAW II ACJUCO 134
orderly, honest, peaceful, and credible elections
would necessarily have to be factored in trying to
see where the balance lies between press and the
demands of a right-to-reply.
Moreover, as already discussed by the Court in
Telecommunications and Broadcast Attorneys of
the Philippines, Inc. v. Commission on Elections.67
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. x x x68
Relevant to this aspect are these passages from an
American Supreme Court decision with regard to
broadcasting, right to reply requirements, and the
limitations on speech:
We have long recognized that each medium of
expression presents special First Amendment
problems. Joseph Burstyn, Inc. v. Wilson, 343 US
495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of
all forms of communication, it is broadcasting that
has received the most limited First Amendment
protection. Thus, although other speakers cannot
be licensed except under laws that carefully define
and narrow official discretion, a broadcaster may be
deprived of his license and his forum if the
Commission decides that such an action would
serve "the public interest, convenience, and
necessity." Similarly, although the First Amendment
protects newspaper publishers from being required
to print the replies of those whom they criticize,
Miami Herald Publishing Co. v. Tornillo, 418 US
241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no
such protection to broadcasters; on the contrary,
they must give free time to the victims of their
criticism. Red Lion Broadcasting Co. v. FCC, 395
US. 367, 23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but
two have relevance to the present case. First, the
broadcast media have established a uniquely
pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented
over the airwaves confronts the citizen not only in
public, but also in the privacy of the home, where
the individual's right to be left alone plainly
 CONSTI LAW II ACJUCO 135

outweighs the First Amendment rights of an

intruder. Rowan v. Post Office Dept., 397 US 728,
25 L Ed 2d 736, 90 S Ct 1484. Because the
broadcast audience is constantly tuning in and out,
prior warnings cannot completely protect the
listener or viewer from unexpected program
content. To say that one may avoid further offense
by turning off the radio when he hears indecent
language is like saying that the remedy for an
assault is to run away after the first blow. One may
hang up on an indecent phone call, but that option
does not give the caller a constitutional immunity or
avoid a harm that has already taken place.
WHEREFORE, premises considered, the petitions
are PARTIALLY GRANTED, Section 9 (a) of
Resolution No. 9615, as amended by Resolution
No. 9631, is declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The constitutionality of
the remaining provisions of Resolution No. 9615, as
amended by Resolution No. 9631, is upheld and
remain in full force and effect.
In view of this Decision, the Temporary Restraining
Order issued by the Court on April 16, 2013 is
hereby made PERMANENT.

Second, broadcasting is uniquely accessible to SO ORDERED.

children, even those too young to read. Although
Cohen's written message might have been
incomprehensible to a first grader, Pacifica's
broadcast could have enlarged a child's vocabulary
in an instant. Other forms of offensive expression
may be withheld from the young without restricting
the expression at its source. Bookstores and
motion picture theaters, for example, may be
prohibited from making indecent material available
to children. We held in Ginsberg v. New York, 390
US 629, that the government's interest in the "well-
being of its youth" and in supporting "parents' claim
to authority in their own household" justified the
regulation of otherwise protected expression. The
ease with which children may obtain access to
broadcast material, coupled with the concerns
recognized in Ginsberg, amply justify special
treatment of indecent broadcasting.69

Given the foregoing considerations, the traditional

notions of preferring speech and the press over so
many other values of society do not readily lend
itself to this particular matter. Instead, additional
weight should be accorded on the constitutional
directive to afford a right to reply. If there was no
such mandate, then the submissions of petitioners
may more easily commend themselves for this
Court's acceptance. But as noted above, this is not
the case. Their arguments simplistically provide
minimal importance to that constitutional command
to the point of marginalizing its importance in the
equation.

In fine, when it comes to election and the exercise

of freedom of speech, of expression and of the
press, the latter must be properly viewed in context
as being necessarily made to accommodate the
imperatives of fairness by giving teeth and
substance to the right to reply requirement.

G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED
BY THE MOST REV. BISHOP VICENTE M.
NAVARRA and THE BISHOP HIMSELF IN HIS
PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE
ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican
State. Sovereignty resides in the people and all
government authority emanates from them." –
Article II, Section 1, Constitution
All governmental authority emanates from our
people. No unreasonable restrictions of the
fundamental and preferred right to expression of
the electorate during political contests no matter
how seemingly benign will be tolerated.
This case defines the extent that our people may
shape the debates during elections. It is significant
and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by
the citizens — who are not candidates — during
elections.
Before us is a special civil action for certiorari and
prohibition with application for preliminary injunction
and temporary restraining order1 under Rule 65 of
the Rules of Court seeking to nullify COMELEC’s
Notice to Remove Campaign Materials2 dated
CONSTI LAW II ACJUCO 136
February 22, 2013 and letter3 issued on February
27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2)
tarpaulins within a private compound housing the
San Sebastian Cathedral of Bacolod. Each
tarpaulin was approximately six feet (6') by ten feet
(10') in size. They were posted on the front walls of
the cathedral within public view. The first tarpaulin
contains the message "IBASURA RH Law"
referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is
the subject of the present case.4 This tarpaulin
contains the heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team Buhay" with
a check mark, or "(Pro-RH) Team Patay" with an
"X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic
Act No. 10354, otherwise known as the RH Law.6
Those who voted for the passing of the law were
classified by petitioners as comprising "Team
Patay," while those who voted against it form
"Team Buhay":7
TEAM BUHAYTEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that
the tarpaulin was neither sponsored nor paid for by
any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013
elections, but not of politicians who helped in the
passage of the RH Law but were not candidates for
that election.
On February 22, 2013, respondent Atty. Mavil V.
Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove
Campaign Materials8 addressed to petitioner Most
Rev. Bishop Vicente M. Navarra. The election
officer ordered the tarpaulin’s removal within three
(3) days from receipt for being oversized.

COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10
requesting, among others, that (1) petitioner Bishop
be given a definite ruling by COMELEC Law
Department regarding the tarpaulin; and (2)
pending this opinion and the availment of legal
remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department
issued a letter12 ordering the immediate removal of
the tarpaulin; otherwise, it will be constrained to file
an election offense against petitioners. The letter of
COMELEC Law Department was silenton the
remedies available to petitioners. The letter
provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer
for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards
the election propaganda material posted on the
church vicinity promoting for or against the
candidates and party-list groups with the following
names and messages, particularly described as
follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25,
2013.
Considering that the above-mentioned material is
found to be in violation of Comelec Resolution No.
9615 promulgated on January 15, 2013 particularly
on the size (even with the subsequent division of
the said tarpaulin into two), as the lawful size for
election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate
removal of said election propaganda material,
CONSTI LAW II ACJUCO 137
otherwise, we shall be constrained to file an
election offense case against you.
We pray that the Catholic Church will be the first
institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution
for their exercise of free speech, petitioners initiated
this case through this petition for certiorari and
prohibition with application for preliminary injunction
and temporary restraining order.14 They question
respondents’ notice dated February 22, 2013 and
letter issued on February 27, 2013. They pray that:
(1) the petition be given due course; (2) a
temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining
respondents from further proceeding in enforcing
their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a
decision be rendered declaring the questioned
orders of respondents as unconstitutional and void,
and permanently restraining respondents from
enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013,
issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their
comment17 arguing that (1) a petition for certiorari
and prohibition under Rule 65 of the Rules of Court
filed before this court is not the proper remedy to
question the notice and letter of respondents; and
(2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate
under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances
ordering its removal for being oversized are valid
and constitutional.18
During the hearing held on March 19, 2013, the
parties were directed to file their respective
memoranda within 10 days or by April 1, 2013,
 CONSTI LAW II ACJUCO 138

taking into consideration the intervening

holidays.19 WHETHER THE 22 FEBRUARY 2013 NOTICE/
ORDER BY ELECTION OFFICER MAJARUCON
The issues, which also served as guide for the oral AND THE 27 FEBRUARY 2013 ORDER BY THE
arguments, are:20 COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND
I. STATE[;] [AND]

WHETHER THE 22 FEBRUARY 2013 V.

NOTICE/ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 WHETHER THE ACTION OF THE PETITIONERS
ORDER BY THE COMELEC LAW DEPARTMENT IN POSTING ITS TARPAULIN VIOLATES THE
ARE CONSIDERED JUDGMENTS/FINAL CONSTITUTIONAL PRINCIPLE OF SEPARATION
ORDERS/RESOLUTIONS OF THE COMELEC OF CHURCH AND STATE.
WHICH WOULD WARRANT A REVIEW OF THIS
COURT VIA RULE 65 PETITION[;] I
PROCEDURAL ISSUES
A. WHETHER PETITIONERS VIOLATED THE
HIERARCHY OF COURTS DOCTRINE AND I.A
JURISPRUDENTIAL RULES GOVERNING
APPEALS FROM COMELEC DECISIONS; This court’s jurisdiction over COMELEC cases

B. ASSUMING ARGUENDO THAT THE Respondents ask that this petition be dismissed on
AFOREMENTIONED ORDERS ARE NOT the ground that the notice and letter are not final
CONSIDERED JUDGMENTS/FINAL orders, decisions, rulings, or judgments of the
ORDERS/RESOLUTIONS OF THE COMELEC, COMELEC En Banc issued in the exercise of its
WHETHER THERE ARE EXCEPTIONAL adjudicatory powers, reviewable via Rule 64 of the
CIRCUMSTANCES WHICH WOULD ALLOW THIS Rules of Court.21
COURT TO TAKE COGNIZANCE OF THE CASE[;]
Rule 64 is not the exclusive remedy for all acts of
II. the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of
WHETHER IT IS RELEVANT TODETERMINE discretion resulting in the ouster of jurisdiction.22
WHETHER THE TARPAULINS ARE "POLITICAL As a special civil action, there must also be a
ADVERTISEMENT" OR "ELECTION showing that there be no plain, speedy, and
PROPAGANDA" CONSIDERING THAT adequate remedy in the ordinary course of the law.
PETITIONER IS NOT A POLITICAL CANDIDATE[;]
Respondents contend that the assailed notice and
III. letter are not subject to review by this court, whose
power to review is "limited only to final decisions,
WHETHER THE TARPAULINS ARE A FORM OR rulings and orders of the COMELEC En Banc
EXPRESSION (PROTECTED SPEECH), OR rendered in the exercise of its adjudicatory or
ELECTION PROPAGANDA/POLITICAL quasi-judicial power."23 Instead, respondents claim
ADVERTISEMENT[;] that the assailed notice and letter are reviewable
only by COMELEC itself pursuant to Article IX-C,
A. ASSUMING ARGUENDO THAT THE Section 2(3) of the Constitution24 on COMELEC’s
TARPAULINS ARE A FORM OF EXPRESSION, power to decide all questions affecting elections.25
WHETHER THE COMELEC POSSESSES THE Respondents invoke the cases of Ambil, Jr. v.
AUTHORITY TO REGULATE THE SAME[;] COMELEC,26 Repol v. COMELEC,27 Soriano, Jr.
v. COMELEC,28 Blanco v. COMELEC,29 and
B. WHETHER THIS FORM OF EXPRESSION Cayetano v. COMELEC,30 to illustrate how
MAY BE REGULATED[;] judicialintervention is limited to final decisions,
orders, rulings and judgments of the COMELEC En
IV. Banc.31

These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the
promulgation of a COMELEC Division resolution.33
No motion for reconsideration was filed to raise this
issue before the COMELEC En Banc. This court
declared that it did not have jurisdiction and
clarified:
We have interpreted [Section 7, Article IX-A of the
Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of
the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme
Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a
Division of the Commission on Elections.35
(Emphasis in the original, citations omitted)
However, in the next case cited by respondents,
Repol v. COMELEC, this court provided exceptions
to this general rule. Repolwas another election
protest case, involving the mayoralty elections in
Pagsanghan, Samar.36 This time, the case was
brought to this court because the COMELEC First
Division issued a status quo ante order against the
Regional Trial Court executing its decision pending
appeal.37 This court’s ponencia discussed the
general rule enunciated in Ambil, Jr. that it cannot
take jurisdiction to review interlocutory orders of a
COMELEC Division.38 However, consistent with
ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this
procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor,
when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is
extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders
and decisions of COMELEC — in electoral contests
— despite not being reviewed by the COMELEC En
Banc, if:
CONSTI LAW II ACJUCO 139
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside
is a nullity; or
5) The need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy
available.
Ultimately, this court took jurisdiction in Repoland
decided that the status quo anteorder issued by the
COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v.
COMELEC.This case was also an election protest
case involving candidates for the city council of
Muntinlupa City.41 Petitioners in Soriano, Jr.filed
before this court a petition for certiorari against an
interlocutory order of the COMELEC First
Division.42 While the petition was pending in this
court, the COMELEC First Division dismissed the
main election protest case.43 Sorianoapplied the
general rule that only final orders should be
questioned with this court. The ponencia for this
court, however, acknowledged the exceptions to
the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by
respondents, was a disqualification case of one of
the mayoralty candidates of Meycauayan,
Bulacan.45 The COMELEC Second Division ruled
that petitioner could not qualify for the 2007
elections due to the findings in an administrative
case that he engaged in vote buying in the 1995
elections.46 No motion for reconsideration was filed
before the COMELEC En Banc. This court,
however, took cognizance of this case applying one
of the exceptions in ABS-CBN: The assailed
resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC,
a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner
assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election
protest petition for lack of form and substance.49
This court clarified the general rule and refused to
take cognizance of the review of the COMELEC
order. While recognizing the exceptions in ABS-

CBN, this court ruled that these exceptions did not
apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and
Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction
over this case. All these cases cited involve
election protests or disqualification cases filed by
the losing candidate against the winning candidate.
In the present case, petitioners are not candidates
seeking for public office. Their petition is filed to
assert their fundamental right to expression.
Furthermore, all these cases cited by respondents
pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case
pertains to acts of COMELEC in the implementation
of its regulatory powers. When it issued the notice
and letter, the COMELEC was allegedly
enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged
constitutional violation: the infringement on speech
and the "chilling effect" caused by respondent
COMELEC’s notice and letter.
Petitioners allege that respondents committed
grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the notice51 dated
February 22,2013 and letter52 dated February 27,
2013 ordering the removal of the tarpaulin.53 It is
their position that these infringe on their
fundamental right to freedom of expression and
violate the principle of separation of church and
state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter
is determined from the allegations in the petition.
Subject matter jurisdiction is defined as the
authority "to hear and determine cases of the
general class to which the proceedings in question
belong and is conferred by the sovereign authority
which organizes the court and defines its
powers."55 Definitely, the subject matter in this
case is different from the cases cited by
respondents.
CONSTI LAW II ACJUCO 140
Nothing less than the electorate’s political speech
will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the
desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to
change the contours of power whether through the
election of representatives in a republican
government or the revision of the basic text of the
Constitution. The zeal with which we protect this
kind of speech does not depend on our evaluation
of the cogency of the message. Neither do we
assess whether we should protect speech based
on the motives of COMELEC. We evaluate
restrictions on freedom of expression from their
effects. We protect both speech and medium
because the quality of this freedom in practice will
define the quality of deliberation in our democratic
society.
COMELEC’s notice and letter affect preferred
speech. Respondents’ acts are capable of
repetition. Under the conditions in which it was
issued and in view of the novelty of this case,it
could result in a "chilling effect" that would affect
other citizens who want their voices heard on
issues during the elections. Other citizens who wish
to express their views regarding the election and
other related issues may choose not to, for fear of
reprisal or sanction by the COMELEC. Direct resort
to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform
for raising grave abuse of discretion.
Both parties point to constitutional provisions on
jurisdiction. For petitioners, it referred to this court’s
expanded exercise of certiorari as provided by the
Constitution as follows:
Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether ornot there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.56 (Emphasis
supplied)
On the other hand, respondents relied on its
constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the
Constitution, provides:
Sec. 2. The Commission on Elections shall
exercise the following powers and functions:

....
(3) Decide, except those involving the right to vote,
all questions affecting elections, including
determination of the number and location of polling
places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is
misplaced.
We are not confronted here with the question of
whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted
with the question as to whether the COMELEC had
any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging
meaningful political speech.
It is clear that the subject matter of the controversy
is the effect of COMELEC’s notice and letter on
free speech. This does not fall under Article IX-C,
Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be
interpreted to mean that COMELEC has the
exclusive power to decide any and allquestions that
arise during elections. COMELEC’s constitutional
competencies during elections should not operate
to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this
case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s
original jurisdiction over petitions for certiorari and
prohibition. This should be read alongside the
expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of
expression by COMELEC is grave abuse of
discretion. Thus, the constitutionality of the notice
and letter coming from COMELEC is within this
court’s power to review.
During elections, we have the power and the duty
to correct any grave abuse of discretion or any act
tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes
actions by the COMELEC. Furthermore, it is this
court’s constitutional mandate to protect the people
against government’s infringement of their
fundamental rights. This constitutional mandate out
weighs the jurisdiction vested with the COMELEC.
CONSTI LAW II ACJUCO 141
It will, thus, be manifest injustice if the court does
not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners
violated the doctrine of hierarchy of courts in
directly filing their petition before this court.
Respondents contend that petitioners’ failure to file
the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of
their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of
Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general
rule on hierarchy of courts, none of these are
present in this case.59
On the other hand, petitioners cite Fortich v.
Corona60 on this court’s discretionary power to
take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the
nature and importance of the issues raised. . . ."61
Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with]
this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the
necessity of the application of the hierarchy of
courts:
The Court must enjoin the observance of the policy
on the hierarchy of courts, and now affirms that the
policy is not to be ignored without serious
consequences. The strictness of the policy is
designed to shield the Court from having to deal
with causes that are also well within the
competence of the lower courts, and thus leave
time to the Court to deal with the more fundamental
and more essential tasks that the Constitution has
assigned to it. The Court may act on petitions for
the extraordinary writs of certiorari, prohibition and
mandamus only when absolutely necessary or
when serious and important reasons exist to justify
an exception to the policy.64
In Bañez, we also elaborated on the reasons why
lower courts are allowed to issue writs of certiorari,
prohibition, and mandamus, citing Vergara v.
Suelto:65

The Supreme Court is a court of lastresort, and
must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not
be burdened with the task of dealing with causes in
the first instance. Its original jurisdiction to issue the
so-called extraordinary writs should be exercised
only where absolutely necessary or where serious
and important reasons exist therefore. Hence, that
jurisdiction should generally be exercised relative to
actions or proceedings before the Court of Appeals,
or before constitutional or other tribunals, bodies or
agencies whose acts for some reason or another
are not controllable by the Court of Appeals. Where
the issuance of an extraordinary writ is also within
the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts
that the specific action for the writ’s procurement
must be presented. This is and should continue to
be the policy in this regard, a policy that courts and
lawyers must strictly observe.66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy
of courts was created by this court to ensure that
every level of the judiciary performs its designated
roles in an effective and efficient manner. Trial
courts do not only determine the facts from the
evaluation of the evidence presented before them.
They are likewise competent to determine issues of
law which may include the validity of an ordinance,
statute, or even an executive issuance in relation to
the Constitution.67 To effectively perform these
functions, they are territorially organized into
regions and then into branches. Their writs
generally reach within those territorial boundaries.
Necessarily, they mostly perform the all-important
task of inferring the facts from the evidence as
these are physically presented before them. In
many instances, the facts occur within their
territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the
constitutionality of such action. The consequences,
of course, would be national in scope. There are,
however, some cases where resort to courts at
their level would not be practical considering their
decisions could still be appealed before the higher
courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an
appellate court that reviews the determination of
facts and law made by the trial courts. It is
collegiate in nature. This nature ensures more
CONSTI LAW II ACJUCO 142
standpoints in the review of the actions of the trial
court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike
the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and,
ideally, should act on constitutional issues thatmay
not necessarily be novel unless there are factual
questions to determine.
This court, on the other hand, leads the judiciary by
breaking new ground or further reiterating — in the
light of new circumstances or in the light of some
confusions of bench or bar — existing precedents.
Rather than a court of first instance or as a
repetition of the actions of the Court of Appeals,
this court promulgates these doctrinal devices in
order that it truly performs that role.
In other words, the Supreme Court’s role to
interpret the Constitution and act in order to protect
constitutional rights when these become exigent
should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never
been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an
iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction
[over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling
reasons69 or if warranted by the nature of the
issues clearly and specifically raised in the
petition."70 As correctly pointed out by
petitioners,71 we have provided exceptions to this
doctrine:
First, a direct resort to this court is allowed when
there are genuine issues of constitutionality that
must be addressed at the most immediate time. A
direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the
constitutionality of actions of both legislative and
executive branches of the government.72
In this case, the assailed issuances of respondents
prejudice not only petitioners’ right to freedom of
expression in the present case, but also of others in
future similar cases. The case before this court
involves an active effort on the part of the
electorate to reform the political landscape. This
has become a rare occasion when private citizens
actively engage the public in political discourse. To
quote an eminent political theorist:

[T]he theory of freedom of expression involves
more than a technique for arriving at better social
judgments through democratic procedures. It
comprehends a vision of society, a faith and a
whole way of life. The theory grew out of an age
that was awakened and invigorated by the idea of
new society in which man's mind was free, his fate
determined by his own powers of reason, and his
prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive,
exciting and intellectually robust community. It
contemplates a mode of life that, through
encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full
potentialities.It spurns the alternative of a society
that is tyrannical, conformist, irrational and
stagnant.73
In a democracy, the citizen’s right tofreely
participate in the exchange of ideas in furtherance
of political decision-making is recognized. It
deserves the highest protection the courts may
provide, as public participation in nation-building isa
fundamental principle in our Constitution. As such,
their right to engage in free expression of ideas
must be given immediate protection by this court.
A second exception is when the issuesinvolved are
of transcendental importance.74 In these cases,
the imminence and clarity of the threat to
fundamental constitutional rights outweigh the
necessity for prudence. The doctrine relating to
constitutional issues of transcendental importance
prevents courts from the paralysis of procedural
niceties when clearly faced with the need for
substantial protection.
In the case before this court, there is a clear threat
to the paramount right of freedom of speech and
freedom of expression which warrants invocation of
relief from this court. The principles laid down in
this decision will likely influence the discourse of
freedom of speech in the future, especially in the
context of elections. The right to suffrage not only
includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice
to the public in general, in the hope of influencing
their votes. It may be said that in an election year,
the right to vote necessarily includes the right to
free speech and expression. The protection of
these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.
CONSTI LAW II ACJUCO 143
Third, cases of first impression75 warrant a direct
resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower
courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of
the case as a matter of first impression that may
guide the lower courts:
In the interest of justice and to settle once and for
all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of
the present case. Such proceedings constitute a
matter of first impression over which there is, as
yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first
impression involving as it does the issue of whether
the right of suffrage includes the right of freedom of
expression. This is a question which this court has
yet to provide substantial answers to, through
jurisprudence. Thus, direct resort to this court is
allowed.
Fourth, the constitutional issues raisedare better
decided by this court. In Drilon v. Lim,78 this court
held that:
. . . it will be prudent for such courts, if only out of a
becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its
validity, which is better determined after a thorough
deliberation by a collegiate body and with the
concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally
enshrined judicial power, that can rule with finality
on whether COMELEC committed grave abuse of
discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case
cannot be ignored. This case was filed during the
2013 election period. Although the elections have
already been concluded, future cases may be filed
that necessitate urgency in its resolution. Exigency
in certain situations would qualify as an exception
for direct resort to this court.
Sixth, the filed petition reviews the act of a
constitutional organ. COMELEC is a constitutional
body. In Albano v. Arranz,80 cited by petitioners,
this court held that "[i]t is easy to realize the chaos
that would ensue if the Court of First Instance

ofeach and every province were [to] arrogate itself
the power to disregard, suspend, or contradict any
order of the Commission on Elections: that
constitutional body would be speedily reduced to
impotence."81
In this case, if petitioners sought to annul the
actions of COMELEC through pursuing remedies
with the lower courts, any ruling on their part would
not have been binding for other citizens whom
respondents may place in the same situation.
Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed
upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in
order that their actions may be guided accordingly
in the future.
Seventh, petitioners rightly claim that they had no
other plain, speedy, and adequate remedy in the
ordinary course of law that could free them from the
injurious effects of respondents’ acts in violation of
their right to freedom of expression.
In this case, the repercussions of the assailed
issuances on this basic right constitute an
exceptionally compelling reason to justify the direct
resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient
ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are
"dictated by public welfare and the advancement of
public policy, or demanded by the broader interest
of justice, or the orders complained of were found
to be patent nullities, or the appeal was considered
as clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on
immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83
government contracts involving modernization of
voters’ registration lists,84 and the status and
existence of a public office.85
This case also poses a question of similar, if not
greater import. Hence, a direct action to this court is
permitted.
It is not, however, necessary that all of these
exceptions must occur at the same time to justify a
direct resort to this court. While generally, the
hierarchy of courts is respected, the present case
falls under the recognized exceptions and, as such,
may be resolved by this court directly.
CONSTI LAW II ACJUCO 144
I.D
The concept of a political question
Respondents argue further that the size limitation
and its reasonableness is a political question,
hence not within the ambit of this court’s power of
review. They cite Justice Vitug’s separate opinion in
Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article
II, of the Constitution also states that the "State
shall guarantee equal access to opportunities for
public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)
(4) nor Section 26, Article II, of the Constitution to
be all that adversarial or irreconcilably inconsistent
with the right of free expression. In any event, the
latter, being one of general application, must yield
to the specific demands of the Constitution. The
freedom of expression concededly holds, it is true,
a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is
not without limitations.
The case is not about a fight between the "rich" and
the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine
attempt on the part of Congress and the
Commission on Elections to ensure that all
candidates are given an equal chance to media
coverage and thereby be equally perceived as
giving real life to the candidates’ right of free
expression rather than being viewed as an undue
restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature
deems to be best in giving life to the Constitutional
mandate, is not for the Court to question; it is a
matter that lies beyond the normal prerogatives of
the Court to pass upon.87
This separate opinion is cogent for the purpose it
was said. But it is not in point in this case.
The present petition does not involve a dispute
between the rich and poor, or the powerful and
weak, on their equal opportunities for media
coverage of candidates and their right to freedom of
expression. This case concerns the right of
petitioners, who are non-candidates, to post the
tarpaulin in their private property, asan exercise of
their right of free expression. Despite the invocation
of the political question doctrine by respondents,

this court is not proscribed from deciding on the
merits of this case.
In Tañada v. Cuenco,88 this court previously
elaborated on the concept of what constitutes a
political question:
What is generally meant, when it is said that a
question is political, and not judicial, is that it is a
matter which is to be exercised by the people in
their primary political capacity, or that it has been
specifically delegated to some other department or
particular officer of the government,
withdiscretionary power to act.89 (Emphasis
omitted)
It is not for this court to rehearse and re-enact
political debates on what the text of the law should
be. In political forums, particularly the legislature,
the creation of the textof the law is based on a
general discussion of factual circumstances,
broadly construed in order to allow for general
application by the executive branch. Thus, the
creation of the law is not limited by particular and
specific facts that affect the rights of certain
individuals, per se.
Courts, on the other hand, rule on adversarial
positions based on existing facts established on a
specific case-to-case basis, where parties affected
by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and
judicial branches of government is essential in
order to ensure that the rights of the general public
are upheld at all times. In order to preserve this
balance, branches of government must afford due
respect and deference for the duties and functions
constitutionally delegated to the other. Courts
cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts
unless we can craft doctrine narrowly tailored to the
circumstances of the case.
The case before this court does not call for the
exercise of prudence or modesty. There is no
political question. It can be acted upon by this court
through the expanded jurisdiction granted to this
court through Article VIII, Section 1 of the
Constitution.
A political question arises in constitutional issues
relating to the powers or competence of different
CONSTI LAW II ACJUCO 145
agencies and departments of the executive or
those of the legislature. The political question
doctrine is used as a defense when the petition
asks this court to nullify certain acts that are
exclusively within the domain of their respective
competencies, as provided by the Constitution or
the law. In such situation, presumptively, this court
should act with deference. It will decline to void an
act unless the exercise of that power was so
capricious and arbitrary so as to amount to grave
abuse of discretion.
The concept of a political question, however, never
precludes judicial review when the act of a
constitutional organ infringes upon a fundamental
individual or collective right. Even assuming
arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging
the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the
political question doctrine:
When political questions are involved, the
Constitution limits the determination to whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of the official whose action is being questioned.
If grave abuse is not established, the Court will not
substitute its judgment for that of the official
concerned and decide a matter which by its nature
or by law is for the latter alone to decide.91
How this court has chosen to address the political
question doctrine has undergone an evolution since
the time that it had been first invoked in Marcos v.
Manglapus. Increasingly, this court has taken the
historical and social context of the case and the
relevance of pronouncements of carefully and
narrowly tailored constitutional doctrines. This trend
was followed in cases such as Daza v. Singson92
and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the
application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners
from the Commission on Appointments. In times
past, this would have involved a quint essentially
political question as it related to the dominance of
political parties in Congress. However, in these
cases, this court exercised its power of judicial
review noting that the requirement of interpreting
the constitutional provision involved the legality and

not the wisdom of a manner by which a
constitutional duty or power was exercised. This
approach was again reiterated in Defensor
Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95
this court declared again that the possible
existence of a political question did not bar an
examination of whether the exercise of discretion
was done with grave abuse of discretion. In that
case, this court ruled on the question of whether
there was grave abuse of discretion in the
President’s use of his power to call out the armed
forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the
legal question as to whether a former President
resigned was not a political question even if the
consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political
crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But
the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of
judicial review expanding on principles that may
avert catastrophe or resolve social conflict.
This court’s understanding of the political question
has not been static or unbending. In Llamas v.
Executive Secretary Oscar Orbos,97 this court
held:
While it is true that courts cannot inquire into the
manner in which the President's discretionary
powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary
powers or whether said powers are within the limits
prescribed by the Constitution, We will not decline
to exercise our power of judicial review. And such
review does not constitute a modification or
correction of the act of the President, nor does it
constitute interference with the functions of the
President.98
The concept of judicial power in relation to the
concept of the political question was discussed
most extensively in Francisco v. HRET.99 In this
case, the House of Representatives argued that the
question of the validity of the second impeachment
complaint that was filed against former Chief
Justice Hilario Davide was a political question
CONSTI LAW II ACJUCO 146
beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his
concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of
this Court becomes more feeble in light of the new
Constitution which expanded the definition of
judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this
expanded definition of judicial power considerably
constricted the scope of political question. He
opined that the language luminously suggests that
this duty (and power) is available even against the
executive and legislative departments including the
President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original,
citations omitted)
Francisco also provides the cases which show the
evolution of the political question, as applied in the
following cases:
In Marcos v. Manglapus, this Court, speaking
through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political
question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to
the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee,
through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a
task that this Court must perform under the
Constitution. Moreover, as held in a recent case,
"(t)he political question doctrine neither interposes
an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot
abdicate that obligation mandated by the 1987
Constitution, although said provision by no means
does away with the applicability of the principle in
appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice
Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional
objection becomes even less tenable and decisive.
The reason is that, even if we were to assume that
the issue presented before us was political in
nature, we would still not be precluded from
resolving it under the expanded jurisdiction
conferred upon us that now covers, in proper
cases, even the political question. x x x (Emphasis
and italics supplied.)
....
In our jurisdiction, the determination of whether an
issue involves a truly political and non-justiciable
question lies in the answer to the question of
whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies.
If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of
the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not
be considered justiciable if there are no
constitutionally imposed limits on powers or
functions conferred upon political bodies. Hence,
the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to
the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost
deference to the right to free speech. Any instance
that this right may be abridged demands judicial
scrutiny. It does not fall squarely into any doubt that
a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the
principle of exhaustion of administrative remedies.
Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or
any of its divisions.102
Respondents point out that petitioners failed to
comply with the requirement in Rule 65 that "there
is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the
assailed issuances was in the course of an
administrative hearing to be conducted by
CONSTI LAW II ACJUCO 147
COMELEC.104 In the event that an election
offense is filed against petitioners for posting the
tarpaulin, they claim that petitioners should resort to
the remedies prescribed in Rule 34 of the
COMELEC Rules of Procedure.105
The argument on exhaustion of administrative
remedies is not proper in this case.
Despite the alleged non-exhaustion of
administrative remedies, it is clear that the
controversy is already ripe for adjudication.
Ripeness is the "prerequisite that something had by
then been accomplished or performed by either
branch [or in this case, organ of government]
before a court may come into the picture."106
Petitioners’ exercise of their right to speech, given
the message and their medium, had
understandable relevance especially during the
elections. COMELEC’s letter threatening the filing
of the election offense against petitioners is already
an actionable infringement of this right. The
impending threat of criminal litigation is enough to
curtail petitioners’ speech.
In the context of this case, exhaustion of their
administrative remedies as COMELEC suggested
in their pleadings prolongs the violation of their
freedom of speech.
Political speech enjoys preferred protection within
our constitutional order. In Chavez v. Gonzales,107
Justice Carpio in a separate opinion emphasized:
"[i]f ever there is a hierarchy of protected
expressions, political expression would occupy the
highest rank, and among different kinds of political
expression, the subject of fair and honest elections
would be at the top."108 Sovereignty resides in the
people.109 Political speech is a direct exercise of
the sovereignty. The principle of exhaustion of
administrative remedies yields in order to protect
this fundamental right.
Even assuming that the principle of exhaustion of
administrative remedies is applicable, the current
controversy is within the exceptions to the principle.
In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of
administrative remedies may be dispensed with
and judicial action may be validly resorted to
immediately: (a) when there is a violation of due
process; (b) when the issue involved is purely a

legal question; (c) when the administrative action is
patently illegal amounting to lack or excess of
jurisdiction; (d) when there is estoppel on the part
of the administrative agency concerned; (e) when
there is irreparable injury; (f) when the respondent
is a department secretary whose acts as an alter
ego of the President bear the implied and assumed
approval of the latter; (g) when to require
exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a
nullification of a claim; (i) when the subject matter is
a private land in land case proceedings; (j) when
the rule does not provide a plain, speedy and
adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation
omitted)
The circumstances emphasized are squarely
applicable with the present case. First, petitioners
allege that the assailed issuances violated their
right to freedom of expression and the principle of
separation of church and state. This is a purely
legal question. Second, the circumstances of the
present case indicate the urgency of judicial
intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to
require the exhaustion of administrative remedies in
this case would be unreasonable.
Time and again, we have held that this court "has
the power to relax or suspend the rules or to except
a case from their operation when compelling
reasons so warrant, or when the purpose of justice
requires it, [and when] [w]hat constitutes [as] good
and sufficient cause that will merit suspension of
the rules is discretionary upon the court".112
Certainly, this case of first impression where
COMELEC has threatenedto prosecute private
parties who seek to participate in the elections by
calling attention to issues they want debated by the
public in the manner they feel would be effective is
one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate
expressions made by private citizens
Respondents cite the Constitution, laws, and
jurisprudence to support their position that they had
CONSTI LAW II ACJUCO 148
the power to regulate the tarpaulin.113 However, all
of these provisions pertain to candidates and
political parties. Petitioners are not candidates.
Neither do they belong to any political party.
COMELEC does not have the authority to regulate
the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this
case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides:
Section 4. The Commission 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.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules
promulgated by COMELEC during the plebiscite for
the creation of the Cordillera Autonomous
Region.116 Columnist Pablito V. Sanidad
questioned the provision prohibiting journalists from
covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the
prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the
press. . . ."118 We held that the "evil sought to be
prevented by this provision is the possibility that a
franchise holder may favor or give any undue
advantage to a candidate in terms of advertising
space or radio or television time."119 This court
found that "[m]edia practitioners exercising their
freedom of expression during plebiscite periods are
neither the franchise holders nor the
candidates[,]"120 thus, their right to expression
during this period may not be regulated by
COMELEC.121
Similar to the media, petitioners in the case at bar
are neither franchise holders nor candidates. II.A.2

Respondents likewise cite Article IX-C, Section 2(7)
of the Constitution as follows:122
Sec. 2. The Commission on Elections shall
exercise the following powers and functions:
....
(7) Recommend to the Congress effective
measures to minimize election spending, including
limitation of places where propaganda materials
shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices,
and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on acts that may
be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign
Materials" issued by COMELEC. This was followed
by the assailed letter regarding the "election
propaganda material posted on the church vicinity
promoting for or against the candidates and party-
list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting
of campaign materials only mentions "parties" and
"candidates":
Sec. 9. Posting of Campaign Materials. - The
COMELEC may authorize political parties and
party-list groups to erect common poster areas for
their candidates in not more than ten (10) public
places such as plazas, markets, barangay centers
and the like, wherein candidates can post, display
or exhibit election propaganda: Provided, That the
size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be
authorized to erect common poster areas in not
more than ten (10) public places, the size of which
shall not exceed four (4) by six (6) feet or its
equivalent. Candidates may post any lawful
propaganda material in private places with the
consent of the owner thereof, and in public places
or property which shall be allocated equitably and
impartially among the candidates. (Emphasis
supplied)
Similarly, Section 17 of COMELEC Resolution No.
9615, the rules and regulations implementing the
Fair Election Act, provides as follows:
CONSTI LAW II ACJUCO 149
SECTION 17. Posting of Campaign Materials. -
Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areas in public
places subject to the requirements and/or
limitations set forth in the next following section;
and
b. Private places provided it has the consent of the
owner thereof.
The posting of campaign materials in public places
outside of the designated common poster areas
and those enumerated under Section 7 (g) of these
Rules and the like is prohibited. Persons posting
the same shall be liable together with the
candidates and other persons who caused the
posting. It will be presumed that the candidates and
parties caused the posting of campaign materials
outside the common poster areas if they do not
remove the same within three (3) days from notice
which shall be issued by the Election Officer of the
city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement
agencies called upon by the Election Officer or
other officials of the COMELEC shall apprehend
the violators caught in the act, and file the
appropriate charges against them. (Emphasis
supplied)
Respondents considered the tarpaulin as a
campaign material in their issuances. The above
provisions regulating the posting of campaign
materials only apply to candidates and political
parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful
Election Propaganda" also states that these are
"allowed for all registered political parties, national,
regional, sectoral parties or organizations
participating under the party-list elections and for all
bona fide candidates seeking national and local
elective positions subject to the limitation on
authorized expenses of candidates and political
parties. . . ." Section 6 of COMELEC Resolution
No. 9615 provides for a similar wording. These
provisions show that election propaganda refers to
matter done by or on behalf of and in coordination
with candidates and political parties. Some level of
coordination with the candidates and political
parties for whom the election propaganda are

released would ensure that these candidates and
political parties maintain within the authorized
expenses limitation.
The tarpaulin was not paid for byany candidate or
political party.125 There was no allegation that
petitioners coordinated with any of the persons
named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part
of their advocacy against the RH Law.
Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power
under the Constitution, to some extent, set a limit
on the right to free speech during election
period.127
National Press Club involved the prohibition on the
sale and donation of space and time for political
advertisements, limiting political advertisements to
COMELEC-designated space and time. This case
was brought by representatives of mass media and
two candidates for office in the 1992 elections.
They argued that the prohibition on the sale and
donation of space and time for political
advertisements is tantamount to censorship, which
necessarily infringes on the freedom of speech of
the candidates.128
This court upheld the constitutionality of the
COMELEC prohibition in National Press Club.
However, this case does not apply as most of the
petitioners were electoral candidates, unlike
petitioners in the instant case. Moreover, the
subject matter of National Press Club, Section
11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano
emphasized that the provision did not infringe upon
the right of reporters or broadcasters to air their
commentaries and opinions regarding the
candidates, their qualifications, and program for
government. Compared to Sanidad wherein the
columnists lost their ability to give their commentary
on the issues involving the plebiscite, National
Press Club does not involve the same infringement.
In the case at bar, petitioners lost their ability to
give a commentary on the candidates for the 2013
national elections because of the COMELEC notice
and letter. It was not merely a regulation on the
campaigns of candidates vying for public office.
Thus, National Press Club does not apply to this
case.
CONSTI LAW II ACJUCO 150
Finally, Section 79 of Batas Pambansa Blg. 881,
otherwise known as the Omnibus Election Code,
defines an "election campaign" as follows:
....
(b) The term "election campaign" or "partisan
political activity" refers to an act designed to
promote the election or defeat of a particular
candidate or candidates to a public office which
shall include:
(1) Forming organizations, associations, clubs,
committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
(2) Holding political caucuses, conferences,
meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes
and/or undertaking any campaign or propaganda
for or against a candidate;
(3) Making speeches, announcements or
commentaries, or holding interviews for or against
the election of any candidate for public office;
(4) Publishing or distributing campaign literature or
materials designed to support or oppose the
election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or
support for or against a candidate.
The foregoing enumerated acts if performed for the
purpose of enhancing the chances of aspirants for
nomination for candidacy to a public office by a
political party, aggroupment, or coalition of parties
shall not be considered as election campaign or
partisan election activity. Public expressions or
opinions or discussions of probable issues in a
forthcoming election or on attributes of or criticisms
against probable candidates proposed to be
nominated in a forthcoming political party
convention shall not be construed as part of any
election campaign or partisan political activity
contemplated under this Article. (Emphasis
supplied)
True, there is no mention whether election
campaign is limited only to the candidates and
political parties themselves. The focus of the
definition is that the act must be "designed to

promote the election or defeat of a particular
candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a
matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the
passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
II.B
The violation of the constitutional right to freedom
of speech and expression
Petitioners contend that the assailed notice and
letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.
On the other hand, respondents contend that the
tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article
IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering its removal for
being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is
Article III, Section 4 of the Constitution:
Section 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.132
No law. . .
While it is true that the present petition assails not a
law but an opinion by the COMELEC Law
Department, this court has applied Article III,
Section 4 of the Constitution even to governmental
acts.
In Primicias v. Fugoso,133 respondent Mayor
applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting
and assembly organized by petitioner Primicias.134
Section 1119 requires a Mayor’s permit for the use
of streets and public places for purposes such as
athletic games, sports, or celebration of national
holidays.135 What was questioned was not a law
but the Mayor’s refusal to issue a permit for the
holding of petitioner’s public meeting.136
CONSTI LAW II ACJUCO 151
Nevertheless, this court recognized the
constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of
grievances, albeit not absolute,137 and the petition
for mandamus to compel respondent Mayor to
issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was
not a law but COMELEC En Banc Resolution No.
98-1419 where the COMELEC resolved to approve
the issuance of a restraining order to stop ABS-
CBN from conducting exit surveys.139 The right to
freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution
was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or
indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute
prohibition against regulation. The primary and
incidental burden on speech must be weighed
against a compelling state interest clearly allowed
in the Constitution. The test depends on the
relevant theory of speech implicit in the kind of
society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the
freedom of expression, separate and in addition to
the freedom of speech and of the press provided in
the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner
Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment,
Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to
the Committee the change of the word "speech" to
EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it
is more expansive, it has a wider scope, and it
would refer to means of expression other than
speech.
THE PRESIDING OFFICER (Mr.Bengzon): What
does the Committee say?
FR. BERNAS: "Expression" is more broad than
speech. We accept it.

MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it
accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there
any objection? (Silence) The Chair hears none; the
amendment is approved.
FR. BERNAS: So, that provision will now read: "No
law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141
Speech may be said to be inextricably linked to
freedom itself as "[t]he right to think is the
beginning of freedom, and speech must be
protected from the government because speech is
the beginning of thought."142
II.B.2
Communication is an essential outcome of
protected speech.143 Communication exists when
"(1) a speaker, seeking to signal others, uses
conventional actions because he orshe reasonably
believes that such actions will be taken by the
audience in the manner intended; and (2) the
audience so takes the actions."144 "[I]n
communicative action[,] the hearer may respond to
the claims by . . . either accepting the speech act’s
claims or opposing them with criticism or requests
for justification."145
Speech is not limited to vocal communication.
"[C]onduct is treated as a form of speech
sometimes referred to as ‘symbolic speech[,]’"146
such that "‘when ‘speech’ and ‘no speech’ elements
are combined in the same course of conduct,’ the
‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of
expression].’"147
The right to freedom of expression, thus, applies to
the entire continuum of speech from utterances
made to conduct enacted, and even to inaction
itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of
Schools of Cebu,148 students who were members
of the religious sect Jehovah’s Witnesses were to
be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the
patriotic pledge.149 In his concurring opinion,
CONSTI LAW II ACJUCO 152
Justice Cruz discussed how the salute is a
symbolic manner of communication and a valid
form of expression.150 He adds that freedom of
speech includes even the right to be silent:
Freedom of speech includes the right to be silent.
Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what
is in his mind also guarantees to him the liberty not
to utter what is not in his mind. The salute is a
symbolic manner of communication that conveys its
messageas clearly as the written or spoken word.
As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the
face of valid religious objections like those raised in
this petition. To impose it on the petitioners is to
deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience
has no place in the free society.
The democratic system provides for the
accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric.
The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by
rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as in this case. The
conscientious objections of the petitioners, no less
than the impatience of those who disagree with
them, are protected by the Constitution. The State
cannot make the individual speak when the soul
within rebels.151
Even before freedom "of expression" was included
in Article III, Section 4 of the present Constitution,
this court has applied its precedent version to
expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman
Katigbak,152 petitioners objected to the
classification of the motion picture "Kapit sa
Patalim" as "For Adults Only." They contend that
the classification "is without legal and factual basis
and is exercised as impermissible restraint of
artistic expression."153 This court recognized that
"[m]otion pictures are important both as a medium
for the communication of ideas and the expression
of the artistic impulse."154 It adds that "every
writer, actor, or producer, no matter what medium
of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s]
perception of what constitutes obscenity appears to
be unduly restrictive."156 However, the petition
was dismissed solely on the ground that there were

not enough votes for a ruling of grave abuse of
discretion in the classification made by the
Board.157
II.B.3
Size does matter
The form of expression is just as important as the
information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A
larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for
passengers inside moving vehicles to read its
content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser
time to view the content of a tarpaulin. The larger
the fonts and images, the greater the probability
that it will catch their attention and, thus, the greater
the possibility that they will understand its
message.
Second, the size of the tarpaulin may underscore
the importance of the message to the reader. From
an ordinary person’s perspective, those who post
their messages in larger fonts care more about their
message than those who carry their messages in
smaller media. The perceived importance given by
the speakers, in this case petitioners, to their cause
is also part of the message. The effectivity of
communication sometimes relies on the emphasis
put by the speakers and onthe credibility of the
speakers themselves. Certainly, larger segments of
the public may tend to be more convinced of the
point made by authoritative figures when they make
the effort to emphasize their messages.
Third, larger spaces allow for more messages.
Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points
which the speakers might want to communicate.
Rather than simply placing the names and images
of political candidates and an expression of
support, larger spaces can allow for brief but
memorable presentations of the candidates’
platforms for governance. Larger spaces allow for
more precise inceptions of ideas, catalyze reactions
to advocacies, and contribute more to a more
educated and reasoned electorate. A more
CONSTI LAW II ACJUCO 153
educated electorate will increase the possibilities of
both good governance and accountability in our
government.
These points become more salient when it is the
electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public
discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound
bites extolling the character of the candidate.
Worse, elections sideline political arguments and
privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government
should in fact encourage it. Between the candidates
and the electorate, the latter have the better
incentive to demand discussion of the more
important issues. Between the candidates and the
electorate, the former have better incentives to
avoid difficult political standpoints and instead focus
on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to
time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of
the Constitution.
II.B.4
There are several theories and schools of thought
that strengthen the need to protect the basic right to
freedom of expression.
First, this relates to the right of the people to
participate in public affairs, including the right to
criticize government actions.
Proponents of the political theory on "deliberative
democracy" submit that "substantial, open, [and]
ethical dialogue is a critical, and indeed defining,
feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a]
collective decision making with the participation of
all who will be affected by the decision."160 It
anchors on the principle that the cornerstone of
every democracy is that sovereignty resides in the
people.161 To ensure order in running the state’s
affairs, sovereign powers were delegated and
individuals would be elected or nominated in key
government positions to represent the people. On
this note, the theory on deliberative democracy may
evolve to the right of the people to make
government accountable. Necessarily, this includes
the right of the people to criticize acts made
pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or
airs out grievances and political discontent, should
thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is
hazardous to discourage thought, hope and
imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable
government; that the path of safety lies in the
opportunity to discuss freely supposed grievances
and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest
of society and the maintenance of good
government demand a full discussion of public
affairs."163 This court has, thus, adopted the
principle that "debate on public issues should be
uninhibited, robust,and wide open . . . [including
even] unpleasantly sharp attacks on government
and public officials."164
Second, free speech should be encouraged under
the concept of a market place of ideas. This theory
was articulated by Justice Holmes in that "the
ultimate good desired is better reached by [the] free
trade in ideas:"165
When men have realized that time has upset many
fighting faiths, they may come to believe even more
than they believe the very foundations of their own
conduct that the ultimate good desired is better
reached by free trade in ideas - that the best test of
truth is the power of the thought to get itself
accepted in the competition of the market, and that
truth is the only ground upon which their wishes
safely can be carried out.166
The way it works, the exposure to the ideas of
others allows one to "consider, test, and develop
their own conclusions."167 A free, open, and
dynamic market place of ideas is constantly
shaping new ones. This promotes both stability and
change where recurring points may crystallize and
weak ones may develop. Of course, free speech is
more than the right to approve existing political
beliefs and economic arrangements as it includes,
"[t]o paraphrase Justice Holmes, [the] freedom for
the thought that we hate, no less than for the
thought that agrees with us."168 In fact, free
speech may "best serve its high purpose when it
induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even
stirs people to anger."169 It is in this context that
CONSTI LAW II ACJUCO 154
we should guard against any curtailment of the
people’s right to participate in the free trade of
ideas.
Third, free speech involves self-expression that
enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among
others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co.,
Inc,171 this court discussed as follows:
The rights of free expression, free assembly and
petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.
Thru these freedoms the citizens can participate
not merely in the periodic establishment of the
government through their suffrage but also in the
administration of public affairs as well as in the
discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for
redress and protection as well as for the imposition
of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity.
For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for
the development of civil skills, for deliberation, and
for the formation of identity and community spirit [,]
[and] are largely immune from [any] governmental
interference."173 They also "provide a buffer
between individuals and the state - a free space for
the development of individual personality, distinct
group identity, and dissident ideas - and a potential
source of opposition to the state."174 Free speech
must be protected as the vehicle to find those who
have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is
supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through
[the] framework [of democratic governance]."175
Federalist framers led by James Madison were
concerned about two potentially vulnerable groups:
"the citizenry at large - majorities - who might be
tyrannized or plundered by despotic federal
officials"176 and the minorities who may be
oppressed by "dominant factions of the electorate
[that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great
importance in a republic not only to guard the

society against the oppression of its rulers, but to
guard one part of the society against the injustice of
the other part."178 We should strive to ensure that
free speech is protected especially in light of any
potential oppression against those who find
themselves in the fringes on public issues.
Lastly, free speech must be protected under the
safety valve theory.179 This provides that
"nonviolent manifestations of dissent reduce the
likelihood of violence [.]"180 "[A] dam about to burst
. . . resulting in the ‘banking up of a menacing flood
of sullen anger behind the walls of restriction’"181
has been used to describe the effect of repressing
nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to
violence, there is a need for peaceful methods in
making passionate dissent. This includes "free
expression and political participation"183 in that
they can "vote for candidates who share their
views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other
citizens of their concerns[,]"184 and conduct
peaceful rallies and other similar acts.185 Free
speech must, thus, be protected as a peaceful
means of achieving one’s goal, considering the
possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political
consequences enjoys a high degree of protection.
Respondents argue that the tarpaulin is election
propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its
constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC
Resolution No. 9615 as follows: SECTION 1.
Definitions . . .
....
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other
symbol or graphic representation that is capable of
being associated with a candidate or party, and is
intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or
CONSTI LAW II ACJUCO 155
indirectly, the election of the said candidate or
candidates to a public office. In broadcast media,
political advertisements may take the form of spots,
appearances on TV shows and radio programs, live
or taped announcements, teasers, and other forms
of advertising messages or announcements used
by commercial advertisers. Political advertising
includes matters, not falling within the scope of
personal opinion, that appear on any Internet
website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites,
in return for consideration, or otherwise capable of
pecuniary estimation.
On the other hand, petitioners invoke their
"constitutional right to communicate their opinions,
views and beliefs about issues and candidates."188
They argue that the tarpaulin was their statement of
approval and appreciation of the named public
officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189 It
was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any
candidate or political party.191 Thus, "the
questioned orders which . . . effectively restrain[ed]
and curtail[ed] [their] freedom of expression should
be declared unconstitutional and void."192
This court has held free speech and other
intellectual freedoms as "highly ranked in our
scheme of constitutional values."193 These rights
enjoy precedence and primacy.194 In Philippine
Blooming Mills, this court discussed the preferred
position occupied by freedom of expression:
Property and property rights can be lost thru
prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of
time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of
oligarchs - political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free
expression and of assembly occupy a preferred
position as they are essential to the preservation
and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and
the sanction not permitting dubious intrusions."195
(Citations omitted)
This primordial right calls for utmost respect, more
so "when what may be curtailed is the

dissemination of information to make more
meaningful the equally vital right of suffrage."196 A
similar idea appeared in our jurisprudence as early
as 1969, which was Justice Barredo’s concurring
and dissenting opinion in Gonzales v.
COMELEC:197
I like to reiterate over and over, for it seems this is
the fundamental point others miss, that genuine
democracy thrives only where the power and right
of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state
exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a
republican state. Sovereignty resides in the people
and all government authority emanates from them"
(Section 1, Article II). Translating this declaration
into actuality, the Philippines is a republic because
and solely because the people in it can be
governed only by officials whom they themselves
have placed in office by their votes. And in it is on
this cornerstone that I hold it to be self-evident that
when the freedoms of speech, press and peaceful
assembly and redress of grievances are being
exercised in relation to suffrage or as a means to
enjoy the inalienable right of the qualified citizen to
vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile,
the conduct of public affairs by our officials must be
allowed to suffer incessant and unabating scrutiny,
favorable or unfavorable, everyday and at all times.
Every holder of power in our government must be
ready to undergo exposure any moment of the day
or night, from January to December every year, as
it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for
those who would regard public dissection of the
establishment as an attribute to be indulged by the
people only at certain periods of time. I consider the
freedoms of speech, press and peaceful assembly
and redress of grievances, when exercised in the
name of suffrage, as the very means by which the
right itself to vote can only be properly enjoyed. It
stands to reason therefore, that suffrage itself
would be next to useless if these liberties cannot be
untrammeled [sic] whether as to degree or time.198
(Emphasis supplied)
Not all speech are treated the same. In Chavez v.
Gonzales, this court discussed that some types of
speech may be subject to regulation:
Some types of speech may be subjected to some
regulation by the State under its pervasive police
CONSTI LAW II ACJUCO 156
power, in order that it may not be injurious to the
equal right of others or those of the community or
society. 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. 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.199 (Citations omitted)
We distinguish between political and commercial
speech. Political speech refers to speech "both
intended and received as a contribution to public
deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the
other hand, commercial speech has been defined
as speech that does "no more than propose a
commercial transaction."202 The expression
resulting from the content of the tarpaulin is,
however, definitely political speech. In Justice
Brion’s dissenting opinion, he discussed that "[t]he
content of the tarpaulin, as well as the timing of its
posting, makes it subject of the regulations in RA
9006 and Comelec Resolution No. 9615."203 He
adds that "[w]hile indeed the RH issue, by itself, is
not an electoral matter, the slant that the petitioners
gave the issue converted the non-election issue
into a live election one hence, Team Buhay and
Team Patay and the plea to support one and
oppose the other."204
While the tarpaulin may influence the success or
failure of the named candidates and political
parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any
candidate, political party, or party-list group.
The second paragraph of Section 1(4) of
COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as
an aid to interpret the law insofar as the facts of this
case requires, states:
4. The term "political advertisement" or "election
propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other
symbol or graphic representation that is capable of

being associated with a candidate or party, and is
intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or
indirectly, the election of the said candidate or
candidates to a public office. In broadcast media,
political advertisements may take the form of spots,
appearances on TV shows and radio programs, live
or taped announcements, teasers, and other forms
of advertising messages or announcements used
by commercial advertisers. Political advertising
includes matters, not falling within the scope of
personal opinion, that appear on any Internet
website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites,
in return for consideration, or otherwise capable of
pecuniary estimation. (Emphasis supplied)
It is clear that this paragraph suggests that
personal opinions are not included, while
sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of
COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this
Resolution:
1. The term "election campaign" or "partisan
political activity" refers to an act designed to
promote the election or defeat of a particular
candidate or candidates to a public office, and shall
include any of the following:
....
Personal opinions, views, and preferences for
candidates, contained in blogs shall not be
considered acts of election campaigning or partisan
political activity unless expressed by government
officials in the Executive Department, the
Legislative Department, the Judiciary, the
Constitutional Commissions, and members of the
Civil Service.
In any event, this case does not refer to speech in
cyberspace, and its effects and parameters should
be deemed narrowly tailored only in relation to the
facts and issues in this case. It also appears that
such wording in COMELEC Resolution No. 9615
does not similarly appear in Republic Act No. 9006,
the law it implements.
We should interpret in this manner because of the
value of political speech.
CONSTI LAW II ACJUCO 157
As early as 1918, in United States v. Bustos,205
this court recognized the need for full discussion of
public affairs. We acknowledged that free speech
includes the right to criticize the conduct of public
men:
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 official dom. 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.206
Subsequent jurisprudence developed the right to
petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207
In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his
or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and
not a contemptuous condemnation of the entire
government set-up."209
The 1927 case of People v. Titular210 involved an
alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a
candidate by means of posters or circulars."211
This court explained that it is the poster’s
anonymous character that is being penalized.212
The ponente adds that he would "dislike very much
to see this decision made the vehicle for the
suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the
importance of allowing individuals to vent their
views. According to this court, "[i]ts value may lie in
the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensure a true
ferment of ideas."215
Allowing citizens to air grievances and speak
constructive criticisms against their government
contributes to every society’s goal for development.
It puts forward matters that may be changed for the
better and ideas that may be deliberated on to
attain that purpose. Necessarily, it also makes the

government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section
11(b) of Republic Act No. 6646, which prohibits
mass media from selling print space and air time for
campaign except to the COMELEC, to be a
democracy-enhancing measure.216 This court
mentioned how "discussion of public issues and
debate on the qualifications of candidates in an
election are essential to the proper functioning of
the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one
of its greatest public purposes in the context of
elections when the free exercise thereof informs the
people what the issues are, and who are supporting
what issues."218 At the heart of democracy is
every advocate’s right to make known what the
people need to know,219 while the meaningful
exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in
order to make their choice.
Thus, in Adiong v. COMELEC,220 this court
discussed the importance of debate on public
issues, and the freedom of expression especially in
relation to information that ensures the meaningful
exercise of the right of suffrage:
We have adopted the principle that debate on
public issues should be uninhibited, robust, and
wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks
on government and public officials. Too many
restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating
of interest essential if our elections will truly be free,
clean and honest.
We have also ruled that the preferred freedom of
expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of
information to make more meaningful the equally
vital right of suffrage.221 (Emphasis supplied,
citations omitted)
Speech with political consequences is at the core of
the freedom of expression and must be protected
by this court.
Justice Brion pointed out that freedom of
expression "is not the god of rights to which all
CONSTI LAW II ACJUCO 158
other rights and even government protection of
state interest must bow."222
The right to freedom of expression is indeed not
absolute. Even some forms of protected speech are
still subject to some restrictions. The degree of
restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-
based regulations can either be based on the
viewpoint of the speaker or the subject of the
expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of
the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed
to comply with the maximum size limitation for
lawful election propaganda.224
On the other hand, petitioners argue that the
present size regulation is content-based as it
applies only to political speech and not to other
forms of speech such as commercial speech.225
"[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and
manner regulation, it’s still unconstitutional for lack
of a clear and reasonable nexus with a
constitutionally sanctioned objective."226
The regulation may reasonably be considered as
either content-neutral or content-based.227
Regardless, the disposition of this case will be the
same. Generally, compared with other forms of
speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of
COMELEC contained in the questioned order
applies only to posters and tarpaulins that may
affect the elections because they deliver opinions
that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view
of what kind of expression of non-candidates will be
adjudged as "election paraphernalia." There are no
existing bright lines to categorize speech as
election-related and those that are not. This is
especially true when citizens will want to use their
resources to be able to raise public issues that
should be tackled by the candidates as what has

happened in this case. COMELEC’s discretion to
limit speech in this case is fundamentally unbridled.
Size limitations during elections hit at a core part of
expression. The content of the tarpaulin is not
easily divorced from the size of its medium.
Content-based regulation bears a heavy
presumption of invalidity, and this court has used
the clear and present danger rule as measure.228
Thus, in Chavez v. Gonzales:
A content-based regulation, 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
imposedare neither overbroad nor vague.229
(Citations omitted)
Under this rule, "the evil consequences sought to
be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely
high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it
pass constitutional muster, with the government
having the burden of overcoming the presumed
unconstitutionality."231
Even with the clear and present danger test,
respondents failed to justify the regulation. There is
no compelling and substantial state interest
endangered by the posting of the tarpaulin as to
justify curtailment of the right of freedom of
expression. There is no reason for the state to
minimize the right of non-candidate petitioners to
post the tarpaulin in their private property. The size
of the tarpaulin does not affect anyone else’s
constitutional rights.
Content-based restraint or censorship refers to
restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-
neutral regulation includes controls merely on the
incidents of the speech such as time, place, or
manner of the speech.233
This court has attempted to define "content-neutral"
restraints starting with the 1948 case of Primicias v.
Fugoso.234 The ordinance in this case was
construed to grant the Mayor discretion only to
determine the public places that may be used for
the procession or meeting, but not the power to
refuse the issuance of a permit for such procession
CONSTI LAW II ACJUCO 159
or meeting.235 This court explained that free
speech and peaceful assembly are "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."236
The earlier case of Calalang v. Williams237
involved the National Traffic Commission resolution
that prohibited the passing of animal-drawn
vehicles along certain roads at specific hours.238
This court similarly discussed police power in that
the assailed rules carry out the legislative policy
that "aims to promote safe transit upon and avoid
obstructions on national roads, in the interest and
convenience of the public."239
As early as 1907, United States v. Apurado240
recognized 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. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on
incidental matters as time, place, and manner of
the speech.
In the landmark case of Reyes v. Bagatsing, this
court summarized the steps that permit applicants
must follow which include informing the licensing
authority ahead of time as regards the date, public
place, and time of the assembly.242 This would
afford the public official time to inform applicants if
there would be valid objections, provided that the
clear and present danger test is the standard used
for his decision and the applicants are given the
opportunity to be heard.243 This ruling was
practically codified in Batas Pambansa No. 880,
otherwise known as the Public Assembly Act of
1985.
Subsequent jurisprudence have upheld Batas
Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244
this court discussed how Batas Pambansa No. 880
does not prohibit assemblies but simply regulates
their time, place, and manner.245 In 2010, this
court found in Integrated Bar of the Philippines v.
Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he
modified the rally permit by changing the venue
from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be
heard.247

We reiterate that the regulation involved at bar is
content-based. The tarpaulin content is not easily
divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest
that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these
"restrict the manner by which speech is relayed but
not the content of what is conveyed."248
If we apply the test for content-neutral regulation,
the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on
freedom of speech.249 "When the speech
restraints take the form of a content-neutral
regulation, only a substantial governmental interest
is required for its validity,"250 and it is subject only
to the intermediate approach.251
This intermediate approach is based on the test
that we have prescribed in several cases.252 A
content-neutral government regulation is sufficiently
justified:
[1] if it is within the constitutional power of the
Government; [2] if it furthers an important or
substantial governmental interest; [3] if the
governmental interest is unrelated to the
suppression of free expression; and [4] if the
incident restriction on alleged [freedom of speech &
expression] is no greater than is essential to the
furtherance of that interest.253
On the first requisite, it is not within the
constitutional powers of the COMELEC to regulate
the tarpaulin. As discussed earlier, this is protected
speech by petitioners who are non-candidates. On
the second requirement, not only must the
governmental interest be important or substantial, it
must also be compelling as to justify the restrictions
made.
Compelling governmental interest would include
constitutionally declared principles. We have held,
for example, that "the welfare of children and the
State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and
compelling government interest in regulating . . .
utterances in TV broadcast."255
CONSTI LAW II ACJUCO 160
Respondent invokes its constitutional mandate to
ensure equal opportunity for public information
campaigns among candidates in connection with
the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed
that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among
candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive
to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-
pocket supporters at an undue advantage against
candidates with more humble financial
capabilities."257
First, Adiong v. COMELEC has held that this
interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise
his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a
prudent course would be to "try to resolve the
tension in a way that protects the right of
participation."259
Second, the pertinent election laws related to
private property only require that the private
property owner’s consent be obtained when posting
election propaganda in the property.260 This is
consistent with the fundamental right against
deprivation of property without due process of
law.261 The present facts do not involve such
posting of election propaganda absent consent
from the property owner. Thus, this regulation does
not apply in this case.
Respondents likewise cite the Constitution262 on
their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-
C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall
exercise the following powers and functions:
(7) Recommend to the Congress effective
measures to minimize election spending, including
limitation of places where propaganda materials
shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices,
and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial
government interest to justify regulation of the
preferred right to freedom of expression.

The assailed issuances for the removal of the
tarpaulin are based on the two feet (2’) by three
feet (3’) size limitation under Section 6(c) of
COMELEC Resolution No. 9615. This resolution
implements the Fair Election Act that provides for
the same size limitation.263
This court held in Adiong v. COMELEC that
"[c]ompared to the paramount interest of the State
in guaranteeing freedom of expression, any
financial considerations behind the regulation are of
marginal significance."264 In fact, speech with
political consequences, as in this case, should be
encouraged and not curtailed. As petitioners
pointed out, the size limitation will not serve the
objective of minimizing election spending
considering there is no limit on the number of
tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not
only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must
be demonstrable. It must allow alternative avenues
for the actor to make speech.
In this case, the size regulation is not unrelated to
the suppression of speech. Limiting the maximum
size of the tarpaulin would render ineffective
petitioners’ message and violate their right to
exercise freedom of expression.
The COMELEC’s act of requiring the removal of the
tarpaulin has the effect of dissuading expressions
with political consequences. These should be
encouraged, more so when exercised to make
more meaningful the equally important right to
suffrage.
The restriction in the present case does not pass
even the lower test of intermediate scrutiny for
content-neutral regulations.
The action of the COMELEC in thiscase is a strong
deterrent to further speech by the electorate. Given
the stature of petitioners and their message, there
are indicators that this will cause a "chilling effect"
on robust discussion during elections.
The form of expression is just as important as the
message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s
CONSTI LAW II ACJUCO 161
colleague and mentor Harold Innis has earlier
asserted that "the materials on which words were
written down have often counted for more than the
words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit
the help of private individuals for the endorsement
of their electoral campaigns.
On the one extreme, this can take illicit forms such
as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are
made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This
skirts the constitutional value that provides for
equal opportunities for all candidates.
However, as agreed by the parties during the oral
arguments in this case, this is not the situation that
confronts us. In such cases, it will simply be a
matter for investigation and proof of fraud on the
part of the COMELEC.
The guarantee of freedom of expression to
individuals without any relationship to any political
candidate should not be held hostage by the
possibility of abuse by those seeking to be elected.
It is true that there can be underhanded, covert, or
illicit dealings so as to hide the candidate’s real
levels of expenditures. However, labelling all
expressions of private parties that tend to have an
effect on the debate in the elections as election
paraphernalia would be too broad a remedy that
can stifle genuine speech like in this case. Instead,
to address this evil, better and more effective
enforcement will be the least restrictive means to
the fundamental freedom.
On the other extreme, moved by the credentials
and the message of a candidate, others will spend
their own resources in order to lend support for the
campaigns. This may be without agreement
between the speaker and the candidate or his or
her political party. In lieu of donating funds to the
campaign, they will instead use their resources
directly in a way that the candidate or political party
would have done so. This may effectively skirt the

constitutional and statutory limits of campaign
spending.
Again, this is not the situation in this case.
The message of petitioners in this case will
certainly not be what candidates and political
parties will carry in their election posters or media
ads. The message of petitioner, taken as a whole,
is an advocacy of a social issue that it deeply
believes. Through rhetorical devices, it
communicates the desire of Diocese that the
positions of those who run for a political position on
this social issue be determinative of how the public
will vote. It primarily advocates a stand on a social
issue; only secondarily — even almost incidentally
— will cause the election or non-election of a
candidate.
The twin tarpaulins consist of satire of political
parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride
prevailing vices or follies,"268 and this may target
any individual or group in society, private and
government alike. It seeks to effectively
communicate a greater purpose, often used for
"political and social criticism"269 "because it tears
down facades, deflates stuffed shirts, and unmasks
hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, well-
known in this literary field, claimed that satire had
two defining features: "one is wit or humor founded
on fantasy or a sense of the grotesque and absurd,
the other is an object of attack."271 Thus, satire
frequently uses exaggeration, analogy, and other
rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay"
does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have
intended it to mean that the entire plan of the
candidates in his list was to cause death
intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the
list. Furthermore, the list of "Team Patay" is
juxtaposed with the list of "Team Buhay" that
further emphasizes the theme of its author:
Reproductive health is an important marker for the
church of petitioners to endorse.
The messages in the tarpaulins are different from
the usual messages of candidates. Election
paraphernalia from candidates and political parties
CONSTI LAW II ACJUCO 162
are more declarative and descriptive and contain
no sophisticated literary allusion to any social
objective. Thus, they usually simply exhort the
public to vote for a person with a brief description of
the attributes of the candidate. For example "Vote
for [x], Sipag at Tiyaga," "Vote for [y], Mr.
Palengke," or "Vote for [z], Iba kami sa Makati."
This court’s construction of the guarantee of
freedom of expression has always been wary of
censorship or subsequent punishment that entails
evaluation of the speaker’s viewpoint or the content
of one’s speech. This is especially true when the
expression involved has political consequences. In
this case, it hopes to affect the type of deliberation
that happens during elections. A becoming humility
on the part of any human institution no matter how
endowed with the secular ability to decide legal
controversies with finality entails that we are not the
keepers of all wisdom.
Humanity’s lack of omniscience, even acting
collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue
whose version is embedded in our Bill of Rights.
There are occasional heretics of yesterday that
have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but
insistent nuance that the majority surely and
comfortably disregards provides us with the checks
upon reality that may soon evolve into creative
solutions to grave social problems. This is the
utilitarian version. It could also be that it is just part
of human necessity to evolve through being able to
express or communicate.
However, the Constitution we interpret is not a
theoretical document. It contains other provisions
which, taken together with the guarantee of free
expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea
of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise
extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not
to unwittingly cause the undesired effect of diluting
freedoms as exercised in reality and, thus, render
them meaningless.
III.B.
Speech and equality:

Some considerations We first establish that there
are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis
liberty.272
In an equality-based approach, "politically
disadvantaged speech prevails over regulation[,]
but regulation promoting political equality prevails
over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’
such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically
subdued within society’s ideological ladder.274
This view acknowledges that there are dominant
political actors who, through authority, power,
resources, identity, or status, have capabilities that
may drown out the messages of others. This is
especially true in a developing or emerging
economy that is part of the majoritarian world like
ours.
The question of libertarian tolerance
This balance between equality and the ability to
express so as to find one’s authentic self or to
participate in the self determination of one’s
communities is not new only to law. It has always
been a philosophical problematique.
In his seminal work, Repressive Tolerance,
philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as
a background limitation, rendering freedoms
exercised within such limitation as merely
"protect[ing] the already established machinery of
discrimination."275 In his view, any improvement
"in the normal course of events" within an unequal
society, without subversion, only strengthens
existing interests of those in power and control.276
In other words, abstract guarantees of fundamental
rights like freedom of expression may become
meaningless if not taken in a real context. This
tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy—this is
almost a tautology, but a tautology which results
from a whole series of synthetic judgments. It
stipulates the ability to determine one’s own life: to
be able to determine what to do and what not to do,
what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual
as that which he actually is or happens to be; it is
CONSTI LAW II ACJUCO 163
rather the individual as a human being who is
capable of being free with the others. And the
problem of making possible such a harmony
between every individual liberty and the other is not
that of finding a compromise between competitors,
or between freedom and law, between general and
individual interest, common and private welfare in
an established society, but of creating the society in
which man is no longer enslaved by institutions
which vitiate self-determination from the beginning.
In other words, freedom is still to be created even
for the freest of the existing societies.277
(Emphasis in the original)
Marcuse suggests that the democratic argument —
with all opinions presented to and deliberated by
the people — "implies a necessary condition,
namely, that the people must be capable of
deliberating and choosing on the basis of
knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation
must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’
can no longer compete peacefully for adherence
and persuasion on rational grounds: the
‘marketplace of ideas’ is organized and delimited by
those who determine the national and the individual
interest."279 A slant toward left manifests from his
belief that "there is a ‘natural right’ of resistance for
oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to
be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from
established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society
he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong
support from legal scholars for "stringent
protections of expressive liberty,"281 especially by
political egalitarians. Considerations such as
"expressive, deliberative, and informational
interests,"282 costs or the price of expression, and
background facts, when taken together, produce
bases for a system of stringent protections for
expressive liberties.283
Many legal scholars discuss the interest and value
of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass
Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus,

warranting stringent protection.285 He defined
political speech as "both intended and received as
a contribution to public deliberation about some
issue."286
But this is usually related also tofair access to
opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive
equality and not mere formal equalitysince
"favorable conditions for realizing the expressive
interest will include some assurance of the
resources required for expression and some
guarantee that efforts to express views on matters
of common concern will not be drowned out by the
speech of betterendowed citizens."288 Justice
Brandeis’ solution is to "remedy the harms of
speech with more speech."289 This view moves
away from playing down the danger as merely
exaggerated, toward "tak[ing] the costs seriously
and embrac[ing] expression as the preferred
strategy for addressing them."290 However, in
some cases, the idea of more speech may not be
enough. Professor Laurence Tribe observed the
need for context and "the specification of
substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon
adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus,
more speech can only mean more speech from the
few who are dominant rather than those who are
not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press
Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This
section "prohibits mass media from selling or giving
free of charge print space or air time for campaign
or other political purposes, except to the
Commission on Elections."294 This court explained
that this provision only regulates the time and
manner of advertising in order to ensure media
equality among candidates.295 This court
grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C,
Section 4
Section 4. The Commission 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
CONSTI LAW II ACJUCO 164
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)
Article XIII, Section 1
Section 1. The Congress shall give highest
priorityto the enactment of measures that protect
and enhance the right of all the people to human
dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access
to opportunities for public service, and prohibit
political dynasties as may be defined by law.
(Emphasis supplied)
Thus, in these cases, we have acknowledged the
Constitution’s guarantee for more substantive
expressive freedoms that take equality of
opportunities into consideration during elections.
The other view
However, there is also the other view. This is that
considerations of equality of opportunity or equality
inthe ability of citizens as speakers should not have
a bearing in free speech doctrine. Under this view,
"members of the public are trusted to make their
own individual evaluations of speech, and
government is forbidden to intervene for
paternalistic or redistributive reasons . . . [thus,]
ideas are best left to a freely competitive ideological
market."297 This is consistent with the libertarian
suspicion on the use of viewpoint as well as content
to evaluate the constitutional validity or invalidity of
speech.

The textual basis of this view is that the
constitutional provision uses negative rather than
affirmative language. It uses ‘speech’ as its subject
and not ‘speakers’.298 Consequently, the
Constitution protects free speech per se, indifferent
to the types, status, or associations of its
speakers.299 Pursuant to this, "government must
leave speakers and listeners in the private order to
their own devices in sorting out the relative
influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v.
COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s
views, but also other cognate rights relevant to the
free communication [of] ideas, not excluding the
right to be informed on matters of public
concern."301 She adds:
And since so many imponderables may affect the
outcome of elections — qualifications of voters and
candidates, education, means of transportation,
health, public discussion, private animosities, the
weather, the threshold of a voter’s resistance to
pressure — the utmost ventilation of opinion of men
and issues, through assembly, association and
organizations, both by the candidate and the voter,
becomes a sine qua non for elections to truly reflect
the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an
American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to
impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:
the concept that the government may restrict the
speech of some elements in our society in order to
enhance the relative voice of the others is wholly
foreign to the First Amendment which was
designed to "secure the widest possible
dissemination of information from diverse and
antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of
political and social changes desired by the
people."304
This echoes Justice Oliver Wendell Holmes’
submission "that the market place of ideas is still
the best alternative to censorship."305
Parenthetically and just to provide the whole detail
of the argument, the majority of the US Supreme
CONSTI LAW II ACJUCO 165
Court in the campaign expenditures case of
Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in
the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the
political arena."306 The majority did not use the
equality-based paradigm.
One flaw of campaign expenditure limits is that
"any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment
the decision of when enough is enough, deprives
him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on
political campaigning inherently constricts the sum
of public information and runs counter to our
‘profound national commitment that debate on
public issues should be uninhibited, robust, and
wide-open.’"308
In fact, "[c]onstraining those who have funds or
have been able to raise funds does not ease the
plight of those without funds in the first place . . .
[and] even if one’s main concern is slowing the
increase in political costs, it may be more effective
torely on market forces to achieve that result than
on active legal intervention."309 According to
Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit
[because in] any campaign there are saturation
levels and a point where spending no longer pays
off in votes per dollar."310
III. C.
When private speech amounts to election
paraphernalia
The scope of the guarantee of free expression
takes into consideration the constitutional respect
for human potentiality and the effect of speech. It
valorizes the ability of human beings to express
and their necessity to relate. On the other hand, a
complete guarantee must also take into
consideration the effects it will have in a
deliberative democracy. Skewed distribution of
resources as well as the cultural hegemony of the
majority may have the effect of drowning out the
speech and the messages of those in the minority.
In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free
speech. Those who have more will have better
access to media that reaches a wider audience

than those who have less. Those who espouse the
more popular ideas will have better reception than
the subversive and the dissenters of society. To be
really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the
viewpoint of the speaker and the content of his or
her expression. This view, thus, restricts laws or
regulation that allows public officials to make
judgments of the value of such viewpoint or
message content. This should still be the principal
approach.
However, the requirements of the Constitution
regarding equality in opportunity must provide limits
to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of
electoral campaigns made by candidates or the
members of their political parties or their political
parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña
v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral
campaigns made by persons who are not
candidates or who do not speak as members of a
political party which are, taken as a whole,
principally advocacies of a social issue that the
public must consider during elections is
unconstitutional. Such regulation is inconsistent
with the guarantee of according the fullest possible
range of opinions coming from the electorate
including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the
choice of a candidate.
This does not mean that there cannot be a specie
of speech by a private citizen which will not amount
to an election paraphernalia to be validly regulated
by law.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of
persons who are not candidates or who do not
speak as members of a political party if they are not
candidates, only if what is regulated is declarative
speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the
objective of enhancing the opportunity of all
CONSTI LAW II ACJUCO 166
candidates to be heard and considering the
primacy of the guarantee of free expression, and
(d) demonstrably the least restrictive means to
achieve that object. The regulation must only be
with respect to the time, place, and manner of the
rendition of the message. In no situation may the
speech be prohibited or censored on the basis of its
content. For this purpose, it will not matter whether
the speech is made with or on private property.
This is not the situation, however, in this case for
two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners
consists of a social advocacy.
Second, as pointed out in the concurring opinion of
Justice Antonio Carpio, the present law — Section
3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 — if applied to this
case, will not pass the test of reasonability. A fixed
size for election posters or tarpaulins without any
relation to the distance from the intended average
audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be
read by the general public and, hence, would
render speech meaningless. It will amount to the
abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311
and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s
right to property.313
Respondents argue that it is the right of the state to
prevent the circumvention of regulations relating to
election propaganda by applying such regulations
to private individuals.314 Certainly, any provision or
regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree
that the tarpaulin in question belongs to petitioners.
Respondents have also agreed, during the oral
arguments, that petitioners were neither
commissioned nor paid by any candidate or political
party to post the material on their walls.
Even though the tarpaulin is readily seen by the
public, the tarpaulin remains the private property of
petitioners. Their right to use their property is
likewise protected by the Constitution.

In Philippine Communications Satellite Corporation
v. Alcuaz:315
Any regulation, therefore, which operates as an
effective confiscation of private property or
constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due
process and equal protection of the laws.316
(Citation omitted)
This court in Adiong held that a restriction that
regulates where decals and stickers should be
posted is "so broad that it encompasses even the
citizen’s private property."317 Consequently, it
violates Article III, Section 1 of the Constitution
which provides thatno person shall be deprived of
his property without due process of law. This court
explained:
Property is more than the mere thing which a
person owns, it includes the right to acquire, use,
and dispose of it; and the Constitution, in the 14th
Amendment, protects these essential attributes.
Property is more than the mere thing which a
person owns. It is elementary that it includes the
right to acquire, use, and dispose of it. The
Constitution protects these essential attributes of
property. Holden v. Hardy, 169 U.S. 366, 391, 41 L.
ed. 780, 790, 18 Sup. Ct. Rep. 383. Property
consists of the free use, enjoyment, and disposal of
a person’s acquisitions without control or diminution
save by the law of the land. 1 Cooley’s Bl. Com.
127. (Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong
violates private property rights:
The right to property may be subject to a greater
degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the
part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in
this case.
Section 11 of Rep. Act 6646 is so encompassing
and invasive that it prohibits the posting or display
of election propaganda in any place, whether public
or private, except inthe common poster areas
sanctioned by COMELEC. This means that a
private person cannot post his own crudely
prepared personal poster on his own front dooror
on a post in his yard. While the COMELEC will
CONSTI LAW II ACJUCO 167
certainly never require the absurd, there are no
limits to what overzealous and partisan police
officers, armed with a copy of the statute or
regulation, may do.319 Respondents ordered
petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of
the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of
its powers.
Freedom of expression can be intimately related
with the right to property. There may be no
expression when there is no place where the
expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in
the present case also reaches out to infringement
on their fundamental right to speech.
Respondents have not demonstrated thatthe
present state interest they seek to promote justifies
the intrusion into petitioners’ property rights.
Election laws and regulations must be reasonable.
It must also acknowledge a private individual’s right
to exercise property rights. Otherwise, the due
process clause will be violated.
COMELEC Resolution No. 9615 and the Fair
Election Act intend to prevent the posting of
election propaganda in private property without the
consent of the owners of such private property.
COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong,
we find that the act of respondents in seeking to
restrain petitioners from posting the tarpaulin in
their own private property is an impermissible
encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether
the COMELEC in issuing the questioned notice and
letter violated the right of petitioners to the free
exercise of their religion.
At the outset, the Constitution mandates the
separation of church and state.320 This takes
many forms. Article III, Section 5 of the
Constitution, for instance provides:
Section 5. No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment
of religious profession and worship, without

discrimination or preference, shall forever be
allowed. Noreligious test shall be required for the
exercise of civil or political rights.
There are two aspects of this provision.321 The
first is the none stablishment clause.322 Second is
the free exercise and enjoyment of religious
profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests,
bishops, ustadz, imams, or any other religious
make such act immune from any secular
regulation.324 The religious also have a secular
existence. They exist within a society that is
regulated by law.
The Bishop of Bacolod caused the posting of the
tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding
petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod,
on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral
teachings. . . ."325
The difficulty that often presents itself in these
cases stems from the reality that every act can be
motivated by moral, ethical, and religious
considerations. In terms of their effect on the
corporeal world, these acts range from belief, to
expressions of these faiths, to religious
ceremonies, and then to acts of a secular character
that may, from the point of view of others who do
not share the same faith or may not subscribe to
any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of
their acts are not conclusive on this court. Certainly,
our powers of adjudication cannot be blinded by
bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of
Ebralinag v. The Division Superintendent of
Schools of Cebu326 in claiming that the court
"emphatically" held that the adherents ofa particular
religion shall be the ones to determine whether a
particular matter shall be considered ecclesiastical
in nature.327 This court in Ebralinagexempted
Jehovah’s Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs,
[no matter how] "bizarre" those beliefsmay seem to
others."328 This court found a balance between the
CONSTI LAW II ACJUCO 168
assertion of a religious practice and the compelling
necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a
policy of benevolent neutrality:
With religion looked upon with benevolence and not
hostility, benevolent neutrality allows
accommodation of religion under certain
circumstances. Accommodations are government
policies that take religion specifically intoaccount
not to promote the government’s favored form of
religion, but to allow individuals and groups to
exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden
on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained,
the "government [may] take religion into
account . . . to exempt, when possible, from
generally applicable governmental regulation
individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which
voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that
case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the
tarpaulin, on its face, "does not convey any
religious doctrine of the Catholic church."332 That
the position of the Catholic church appears to
coincide with the message of the tarpaulin
regarding the RH Law does not, by itself, bring the
expression within the ambit of religious speech. On
the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and
"Team Buhay" according to their respective votes
on the RH Law.
The same may be said of petitioners’ reliance on
papal encyclicals to support their claim that the
expression on the tarpaulin is an ecclesiastical
matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are
not binding upon this court. The position of the
Catholic religion in the Philippines as regards the
RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious
speech solely on such basis. The enumeration of

candidates on the face of the tarpaulin precludes
any doubt as to its nature as speech with political
consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical
affair" in Austria v. National Labor Relations
Commission333 cited by petitioners finds no
application in the present case. The posting of the
tarpaulin does not fall within the category of matters
that are beyond the jurisdiction of civil courts as
enumerated in the Austria case such as
"proceedings for excommunication, ordinations of
religious ministers, administration of sacraments
and other activities with attached religious
significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in
attempting to do what it thought was its duty in this
case. However, it was misdirected.
COMELEC’s general role includes a mandate to
ensure equal opportunities and reduce spending
among candidates and their registered political
parties. It is not to regulate or limit the speech of
the electorate as it strives to participate in the
electoral exercise.
The tarpaulin in question may be viewed as
producing a caricature of those who are running for
public office. Their message may be construed
generalizations of very complex individuals and
party-list organizations.
They are classified into black and white: as
belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some,
is still protected speech.
That petitioners chose to categorize them as
purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that
— can easily be interpreted as an attempt to stereo
type the candidates and party-list organizations.
Not all may agree to the way their thoughts were
expressed, as in fact there are other Catholic
dioceses that chose not to follow the example of
petitioners.
Some may have thought that there should be more
room to consider being more broad-minded and
non-judgmental. Some may have expected that the
CONSTI LAW II ACJUCO 169
authors would give more space to practice
forgiveness and humility.
But, the Bill of Rights enumerated in our
Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes
good conduct. It provides space for all to be guided
by their conscience, not only in the act that they do
to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can
be wielded not only by those in the minority. This
can often be expressed by dominant institutions,
even religious ones. That they made their point
dramatically and in a large way does not
necessarily mean that their statements are true, or
that they have basis, or that they have been
expressed in good taste.
Embedded in the tarpaulin, however, are opinions
expressed by petitioners. It is a specie of
expression protected by our fundamental law. It is
an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions
will have very real secular consequences.
Certainly, provocative messages do matter for the
elections.
What is involved in this case is the most sacred of
speech forms: expression by the electorate that
tends to rouse the public to debate contemporary
issues. This is not speech by candidates or political
parties to entice votes. It is a portion of the
electorate telling candidates the conditions for their
election. It is the substantive content of the right to
suffrage.
This. is a form of speech hopeful of a quality of
democracy that we should all deserve. It is
protected as a fundamental and primordial right by
our Constitution. The expression in the medium
chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED.
The temporary restraining order previously issued
is hereby made permanent. The act of the
COMELEC in issuing the assailed notice dated
February 22, 2013 and letter dated February 27,
2013 is declared unconstitutional.
SO ORDERED.
 CONSTI LAW II ACJUCO 170

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI,

LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF THE
INTERIOR AND LOCAL GOVERNMENT, THE
EXECUTIVE DIRECTOR OF THE INFORMATION
AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE and THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION,
Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and
PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x
 CONSTI LAW II ACJUCO 171

HON. RAYMOND V. PALATINO, HON. ANTONIO

G.R. No. 203306 TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN PHILIPPINE COLLEGIAN, ISABELLE THERESE
NG MAMAMAYAN MOVEMENT, INC., JERRY S. BAGUISI OF THE NATIONAL UNION OF
YAP, BERTENI "TOTO" CAUSING, HERNANI Q. STUDENTS OF THE PHILIPPINES, ET AL.,
CUARE, PERCY LAPID, TRACY CABRERA, Petitioners,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., vs.
DERVIN CASTRO, ET AL., Petitioners, PAQUITO N. OCHOA, JR., in his capacity as
vs. Executive Secretary and alter-ego of President
OFFICE OF THE PRESIDENT, represented by Benigno Simeon Aquino III, LEILA DE LIMA in
President Benigno Simeon Aquino III, SENATE her capacity as Secretary of Justice,
OF THE PHILIPPINES, and HOUSE OF Respondents.
REPRESENTATIVES, Respondents.
x-----------------------x
x-----------------------x
G.R. No. 203407
G.R. No. 203359
BAGONG ALYANSANG MAKABAYAN
SENATOR TEOFISTO DL GUINGONA III, SECRETARY GENERAL RENATO M. REYES,
Petitioner, JR., National Artist BIENVENIDO L. LUMBERA,
vs. Chairperson of Concerned Artists of the
EXECUTIVE SECRETARY, THE SECRETARY OF Philippines, ELMER C. LABOG, Chairperson of
JUSTICE, THE SECRETARY OF THE Kilusang Mayo Uno, CRISTINA E. PALABAY,
DEPARTMENT OF INTERIOR AND LOCAL Secretary General of Karapatan, FERDINAND R.
GOVERNMENT, THE CHIEF OF THE PHILIPPINE GAITE, Chairperson of COURAGE, JOEL B.
NATIONAL POLICE, and DIRECTOR OF THE MAGLUNSOD, Vice President of Anakpawis
NATIONAL BUREAU OF INVESTIGATION, Party-List, LANA R. LINABAN, Secretary
Respondents. General Gabriela Women's Party, ADOLFO
ARES P. GUTIERREZ, and JULIUS GARCIA
x-----------------------x MATIBAG, Petitioners,
vs.
G.R. No. 203378 BENIGNO SIMEON C. AQUINO III, President of
the Republic of the Philippines, PAQUITO N.
ALEXANDER ADONIS, ELLEN TORDESILLAS, OCHOA, JR., Executive Secretary, SENATE OF
MA. GISELA ORDENES-CASCOLAN, H. HARRY THE PHILIPPINES, represented by SENATE
L. ROQUE, JR., ROMEL R. BAGARES, and PRESIDENT JUAN PONCE ENRILE, HOUSE OF
GILBERT T. ANDRES, Petitioners, REPRESENTATIVES, represented by SPEAKER
vs. FELICIANO BELMONTE, JR., LEILA DE LIMA,
THE EXECUTIVE SECRETARY, THE Secretary of the Department of Justice, LOUIS
DEPARTMENT OF BUDGET AND NAPOLEON C. CASAMBRE, Executive Director
MANAGEMENT, THE DEPARTMENT OF of the Information and Communications
JUSTICE, THE DEPARTMENT OF THE Technology Office, NONNATUS CAESAR R.
INTERIOR AND LOCAL GOVERNMENT, THE ROJAS, Director of the National Bureau of
NATIONAL BUREAU OF INVESTIGATION, THE Investigation, D/GEN. NICANOR A.
PHILIPPINE NATIONAL POLICE, AND THE BARTOLOME, Chief of the Philippine National
INFORMATION AND COMMUNICATIONS Police, MANUEL A. ROXAS II, Secretary of the
TECHNOLOGY OFFICE-DEPARTMENT OF Department of the Interior and Local
SCIENCE AND TECHNOLOGY, Respondents. Government, Respondents.

x-----------------------x x-----------------------x

G.R. No. 203391 G.R. No. 203440


MELENCIO S. STA. MARIA, SEDFREY M.
CANDELARIA, AMPARITA STA. MARIA, RAY
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO,
and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity
as Executive Secretary, HONORABLE LEILA DE
LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity
as Secretary of the Department of Interior and
Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National
Bureau of Investigation (all of the Executive
Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), PHILIPPINE PRESS
INSTITUTE (PPI), CENTER FOR MEDIA
FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE
JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-
PETITION http://www.nujp.org/no-to-ra10175/,
Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY
OF THE INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING
CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND
ALL PERSONS ACTING UNDER THEIR
INSTRUCTIONS, ORDERS, DIRECTION IN
RELATION TO THE IMPLEMENTATION OF
REPUBLIC ACT NO. 10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners,
vs.
CONSTI LAW II ACJUCO 172
THE HON. SECRETARY OF JUSTICE THE HON.
SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R.
LANDICHO; BENJAMIN NOEL A. ESPINA;
MARCK RONALD C. RIMORIN; JULIUS D.
ROCAS; OLIVER RICHARD V. ROBILLO;
AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA.
ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS
IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN
B. LICERA, JR; and PINOY EXPAT/OFW BLOG
AWARDS, INC. COORDINATOR PEDRO E.
RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in
his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity
as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice;
HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and
Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity
as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his
capacity as Chief, Philippine National Police,
Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC.,
Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in
his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N.
OCHOA, JR., in his official capacity as

Executive Secretary; HON. LEILA M. DE LIMA,
in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director,
Information and Communications Technology
Office; NONNATUS CAESAR R. ROJAS, in his
official capacity as Director of the National
Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine
National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO
OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES,
INC. represented by BENNY D. ANTIPORDA in
his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO
SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET
AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO
HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175,
Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE,
composed of DAKILA-PHILIPPINE COLLECTIVE
FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA,
represented by Cesar S. Melencio, FRANCIS
EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO,
CONSTI LAW II ACJUCO 173
NOEMI LARDIZABAL-DADO, IMELDA ORALES,
JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA,
MEDARDO M. MANRIQUE, JR., LAUREN DADO,
MARCO VITTORIA TOBIAS SUMAYAO, IRENE
CHIA, ERASTUS NOEL T. DELIZO, CRISTINA
SARAH E. OSORIO, ROMEO FACTOLERIN,
NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY
OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE
NATIONAL POLICE, THE HEAD OF THE DOJ
OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare
several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012,
unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and
use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a
system that links him to other computers and
enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all
kinds of information that he needs for research,
study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages,
including pictures and videos, for the general public
or for special audiences like associates,
classmates, or friends and read postings from
them;
3. Advertise and promote goods or services and
make purchases and payments;

4. Inquire and do business with institutional entities
like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities,
hospitals, and schools; and
5. Communicate in writing or by voice with any
person through his e-mail address or telephone.
This is cyberspace, a system that accommodates
millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current
generation for greater information and facility of
communication. But all is not well with the system
since it could not filter out a number of persons of ill
will who would want to use cyberspace technology
for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin
the reputation of another or bully the latter by
posting defamatory statements against him that
people can read.
And because linking with the internet opens up a
user to communications from others, the ill-
motivated can use the cyberspace for committing
theft by hacking into or surreptitiously accessing his
bank account or credit card or defrauding him
through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for
exposing to pornography guileless children who
have access to the internet. For this reason, the
government has a legitimate right to regulate the
use of cyberspace and contain and punish
wrongdoings.
Notably, there are also those who would want, like
vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly
useful institutions as well as to the laptop or
computer programs and memories of innocent
individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy
those computer systems, networks, programs, and
memories. The government certainly has the duty
and the right to prevent these tomfooleries from
happening and punish their perpetrators, hence the
Cybercrime Prevention Act.
But petitioners claim that the means adopted by the
cybercrime law for regulating undesirable
cyberspace activities violate certain of their
constitutional rights. The government of course
asserts that the law merely seeks to reasonably put
order into cyberspace activities, punish
CONSTI LAW II ACJUCO 174
wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues
presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government
agencies from implementing the cybercrime law
until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the
following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties
for their commission as well as provisions that
would enable the government to track down and
penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial
Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the
Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic
Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination
of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to
Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and
Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of
related Articles 353, 354, 361, and 362 of the RPC
on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity
and availability of computer data and systems:
(1) Illegal Access. – The access to the whole or any
part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to
meet the strict scrutiny standard required of laws
that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny
standard, an American constitutional construct,1
useful in determining the constitutionality of laws
that tend to target a class of things or persons.
According to this standard, a legislative
classification that impermissibly interferes with the
exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the
government to prove that the classification is
necessary to achieve a compelling state interest
and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard
was used to assess the validity of laws dealing with
CONSTI LAW II ACJUCO 175
the regulation of speech, gender, or race as well as
other fundamental rights, as expansion from its
earlier applications to equal protection.3
In the cases before it, the Court finds nothing in
Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental
freedom, like speech, is involved in punishing what
is essentially a condemnable act – accessing the
computer system of another without right. It is a
universally condemned conduct.4
Petitioners of course fear that this section will
jeopardize the work of ethical hackers,
professionals who employ tools and techniques
used by criminal hackers but would neither damage
the target systems nor steal information. Ethical
hackers evaluate the target system’s security and
report back to the owners the vulnerabilities they
found in it and give instructions for how these can
be remedied. Ethical hackers are the equivalent of
independent auditors who come into an
organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker
requires an agreement between them as to the
extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the
"get out of jail free card."6 Since the ethical hacker
does his job with prior permission from the client,
such permission would insulate him from the
coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity
and availability of computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless
alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic
data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from
overbreadth in that, while it seeks to discourage

data interference, it intrudes into the area of
protected speech and expression, creating a
chilling and deterrent effect on these guaranteed
freedoms.
Under the overbreadth doctrine, a proper
governmental purpose, constitutionally subject to
state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly,
thereby invading the area of protected freedoms.7
But Section 4(a)(3) does not encroach on these
freedoms at all. It simply punishes what essentially
is a form of vandalism,8 the act of willfully
destroying without right the things that belong to
others, in this case their computer data, electronic
document, or electronic data message. Such act
has no connection to guaranteed freedoms. There
is no freedom to destroy other people’s computer
systems and private documents.
All penal laws, like the cybercrime law, have of
course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that
hangs on the heads of citizens who are minded to
step beyond the boundaries of what is proper. But
to prevent the State from legislating criminal laws
because they instill such kind of fear is to render
the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect
that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to
punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.
Besides, the overbreadth challenge places on
petitioners the heavy burden of proving that under
no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this
burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:
(a) Offenses against the confidentiality, integrity
and availability of computer data and systems:
xxxx
CONSTI LAW II ACJUCO 176
(6) Cyber-squatting. – The acquisition of domain
name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others
from registering the same, if such a domain name
is:
(i) Similar, identical, or confusingly similar to an
existing trademark registered with the appropriate
government agency at the time of the domain name
registration;
(ii) Identical or in any way similar with the name of a
person other than the registrant, in case of a
personal name; and
(iii) Acquired without right or with intellectual
property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-
squatting violates the equal protection clause12 in
that, not being narrowly tailored, it will cause a user
using his real name to suffer the same fate as
those who use aliases or take the name of another
in satire, parody, or any other literary device. For
example, supposing there exists a well known
billionaire-philanthropist named "Julio Gandolfo,"
the law would punish for cyber-squatting both the
person who registers such name because he
claims it to be his pseudo-name and another who
registers the name because it happens to be his
real name. Petitioners claim that, considering the
substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses
"Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose
for which he uses the name that the law condemns.
The law is reasonable in penalizing him for
acquiring the domain name in bad faith to profit,
mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of
registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of
denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following
acts constitute the offense of cybercrime
punishable under this Act:

xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The
intentional acquisition, use, misuse, transfer,
possession, alteration, or deletion of identifying
information belonging to another, whether natural
or juridical, without right: Provided: that if no
damage has yet been caused, the penalty
imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the
constitutional rights to due process and to privacy
and correspondence, and transgresses the
freedom of the press.
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against
unreasonable searches and seizures.13 But the
Court acknowledged its existence as early as 1968
in Morfe v. Mutuc,14 it ruled that the right to privacy
exists independently of its identification with liberty;
it is in itself fully deserving of constitutional
protection.
Relevant to any discussion of the right to privacy is
the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v.
Senator Gordon"15 the relevance of these zones to
the right to privacy:
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in
accordance with customary legal process. The
meticulous regard we accord to these zones arises
not only from our conviction that the right to privacy
is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to
the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to
arbitrary interference with his privacy" and
"everyone has the right to the protection of the law
against such interference or attacks."
Two constitutional guarantees create these zones
of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the
right to be let alone, and (b) the right to privacy of
CONSTI LAW II ACJUCO 177
communication and correspondence.17 In
assessing the challenge that the State has
impermissibly intruded into these zones of privacy,
a court must determine whether a person has
exhibited a reasonable expectation of privacy and,
if so, whether that expectation has been violated by
unreasonable government intrusion.18
The usual identifying information regarding a
person includes his name, his citizenship, his
residence address, his contact number, his place
and date of birth, the name of his spouse if any, his
occupation, and similar data.19 The law punishes
those who acquire or use such identifying
information without right, implicitly to cause
damage. Petitioners simply fail to show how
government effort to curb computer-related identity
theft violates the right to privacy and
correspondence as well as the right to due process
of law.
Also, the charge of invalidity of this section based
on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific
actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no
fundamental right to acquire another’s personal
data.
Further, petitioners fear that Section 4(b)(3) violates
the freedom of the press in that journalists would be
hindered from accessing the unrestricted user
account of a person in the news to secure
information about him that could be published. But
this is not the essence of identity theft that the law
seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an
illegitimate purpose. Moreover, acquiring and
disseminating information made public by the user
himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal
act which can be established through the overt acts
of the offender, and it may be presumed from the
furtive taking of useful property pertaining to
another, unless special circumstances reveal a
different intent on the part of the perpetrator.20 As
such, the press, whether in quest of news reporting
or social investigation, has nothing to fear since a
special circumstance is present to negate intent to
gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement,
maintenance, control, or operation, directly or
indirectly, of any lascivious exhibition of sexual
organs or sexual activity, with the aid of a computer
system, for favor or consideration.
Petitioners claim that the above violates the
freedom of expression clause of the Constitution.21
They express fear that private communications of
sexual character between husband and wife or
consenting adults, which are not regarded as
crimes under the penal code, would now be
regarded as crimes when done "for favor" in
cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or
right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This
meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would
invite law enforcement agencies into the bedrooms
of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of
Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the
issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and
among two private persons x x x although that may
be a form of obscenity to some."23 The
understanding of those who drew up the
cybercrime law is that the element of "engaging in a
business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for
favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious
exhibition of sexual organs or sexual activity—is not
novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003
CONSTI LAW II ACJUCO 178
penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law
defines prostitution as any act, transaction,
scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other
consideration.27
The case of Nogales v. People28 shows the extent
to which the State can regulate materials that serve
no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court
weighed the property rights of individuals against
the public welfare. Private property, if containing
pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts
privately through internet connection, perceived by
some as a right, has to be balanced with the
mandate of the State to eradicate white slavery and
the exploitation of women.
In any event, consenting adults are protected by
the wealth of jurisprudence delineating the bounds
of obscenity.30 The Court will not declare Section
4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons
engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious
exhibition of sexual organs or sexual activity with
the aid of a computer system as Congress has
intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or
prohibited acts defined and punishable by Republic
Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system:
Provided, That the penalty to be imposed shall be
(1) one degree higher than that provided for in
Republic Act No. 9775.

It seems that the above merely expands the scope
of the Anti-Child Pornography Act of 200931
(ACPA) to cover identical activities in cyberspace.
In theory, nothing prevents the government from
invoking the ACPA when prosecuting persons who
commit child pornography using a computer
system. Actually, ACPA’s definition of child
pornography already embraces the use of
"electronic, mechanical, digital, optical, magnetic or
any other means." Notably, no one has questioned
this ACPA provision.
Of course, the law makes the penalty higher by one
degree when the crime is committed in cyberspace.
But no one can complain since the intensity or
duration of penalty is a legislative prerogative and
there is rational basis for such higher penalty.32
The potential for uncontrolled proliferation of a
particular piece of child pornography when
uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that
makes it unlawful for any person to "produce,
direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that
ACPA seeks to punish.34 Petitioners are wary that
a person who merely doodles on paper and
imagines a sexual abuse of a 16-year-old is not
criminally liable for producing child pornography but
one who formulates the idea on his laptop would
be. Further, if the author bounces off his ideas on
Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by
simply commenting on it will be discussed
elsewhere below. For now the Court must hold that
the constitutionality of Section 4(c)(2) is not
successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
CONSTI LAW II ACJUCO 179
(3) Unsolicited Commercial Communications. – The
transmission of commercial electronic
communication with the use of computer system
which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:
(i) There is prior affirmative consent from the
recipient; or
(ii) The primary intent of the communication is for
service and/or administrative announcements from
the sender to its existing users, subscribers or
customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication
contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial
electronic messages (opt-out) from the same
source;
(bb) The commercial electronic communication
does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication
does not purposely include misleading information
in any part of the message in order to induce the
recipients to read the message.
The above penalizes the transmission of unsolicited
commercial communications, also known as
"spam." The term "spam" surfaced in early internet
chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was
said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors
would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35
The Government, represented by the Solicitor
General, points out that unsolicited commercial
communications or spams are a nuisance that
wastes the storage and network capacities of
internet service providers, reduces the efficiency of
commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property.
Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters
the recipient’s domain without prior permission. The
OSG contends that commercial speech enjoys less
protection in law.

But, firstly, the government presents no basis for
holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These
have never been outlawed as nuisance since
people might have interest in such ads. What
matters is that the recipient has the option of not
opening or reading these mail ads. That is true with
spams. Their recipients always have the option to
delete or not to read them.
To prohibit the transmission of unsolicited ads
would deny a person the right to read his emails,
even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of
speech which is not accorded the same level of
protection as that given to other constitutionally
guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him
of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited
advertisements are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the
penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and
malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or
juridical person, or to blacken the memory of one
who is dead.
Art. 354. Requirement for publicity. — Every
defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable
motive for making it is shown, except in the
following cases:
1. A private communication made by any person to
another in the performance of any legal, moral or
social duty; and
CONSTI LAW II ACJUCO 180
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
of any other act performed by public officers in the
exercise of their functions.
Art. 355. Libel means by writings or similar means.
— A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision
correccional in its minimum and medium periods or
a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by
the offended party.
The libel provision of the cybercrime law, on the
other hand, merely incorporates to form part of it
the provisions of the RPC on libel. Thus Section
4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts
constitute the offense of cybercrime punishable
under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel
as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer
system or any other similar means which may be
devised in the future.
Petitioners lament that libel provisions of the penal
code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of
"presumed malice" even when the latest
jurisprudence already replaces it with the higher
standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring
"presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed freedom
of expression.
Petitioners would go further. They contend that the
laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence

requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even
where the offended parties happened to be public
figures.
The elements of libel are: (a) the allegation of a
discreditable act or condition concerning another;
(b) publication of the charge; (c) identity of the
person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when
the offender makes the defamatory statement with
the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The
reckless disregard standard used here requires a
high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts
as to the truth of the statement he published. Gross
or even extreme negligence is not sufficient to
establish actual malice.43
The prosecution bears the burden of proving the
presence of actual malice in instances where such
element is required to establish guilt. The defense
of absence of actual malice, even when the
statement turns out to be false, is available where
the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First
National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a
defamatory statement where the offended party is a
public figure. Society’s interest and the
maintenance of good government demand a full
discussion of public affairs.44
Parenthetically, the Court cannot accept the
proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures.
Actually, the Court found the presence of malice in
fact in that case. Thus:
It can be gleaned from her testimony that petitioner
had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that
there was no malice on her part. Verily, not only
was there malice in law, the article being malicious
CONSTI LAW II ACJUCO 181
in itself, but there was also malice in fact, as there
was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively
wide leeway given to utterances against public
figures in the above case, cinema and television
personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private
individual, the prosecution need not prove the
presence of malice. The law explicitly presumes its
existence (malice in law) from the defamatory
character of the assailed statement.45 For his
defense, the accused must show that he has a
justifiable reason for the defamatory statement
even if it was in fact true.46
Petitioners peddle the view that both the penal
code and the Cybercrime Prevention Act violate the
country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR).
They point out that in Adonis v. Republic of the
Philippines,47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should
include the defense of truth.
But General Comment 34 does not say that the
truth of the defamatory statement should constitute
an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under
the condition that the accused has been prompted
in making the statement by good motives and for
justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal
prosecution for libel, the truth may be given in
evidence to the court and if it appears that the
matter charged as libelous is true, and, moreover,
that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or
omission not constituting a crime shall not be
admitted, unless the imputation shall have been
made against Government employees with respect
to facts related to the discharge of their official
duties.
In such cases if the defendant proves the truth of
the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the
Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle
freedom of expression.48 Indeed, the ICCPR states
that although everyone should enjoy freedom of
expression, its exercise carries with it special duties
and responsibilities. Free speech is not absolute. It
is subject to certain restrictions, as may be
necessary and as may be provided by law.49
The Court agrees with the Solicitor General that
libel is not a constitutionally protected speech and
that the government has an obligation to protect
private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article
353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above
merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Court’s acquiescence goes only insofar as
the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with
it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture
associated with internet media is distinct from that
of print.
The internet is characterized as encouraging a
freewheeling, anything-goes writing style.50 In a
sense, they are a world apart in terms of quickness
of the reader’s reaction to defamatory statements
posted in cyberspace, facilitated by one-click reply
options offered by the networking site as well as by
the speed with which such reactions are
disseminated down the line to other internet users.
Whether these reactions to defamatory statement
posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime
law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall
also constitute an offense:
(a) Aiding or Abetting in the Commission of
Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses
enumerated in this Act shall be held liable.
CONSTI LAW II ACJUCO 182
(b) Attempt in the Commission of Cybercrime. —
Any person who willfully attempts to commit any of
the offenses enumerated in this Act shall be held
liable.
Petitioners assail the constitutionality of Section 5
that renders criminally liable any person who
willfully abets or aids in the commission or attempts
to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a
chilling and deterrent effect on protected
expression.
The Solicitor General contends, however, that the
current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of
expression of "netizens," the multitude that avail
themselves of the services of the internet. He
points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or
abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and
common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The
legislature is not required to define every single
word contained in the laws they craft.
Aiding or abetting has of course well-defined
meaning and application in existing laws. When a
person aids or abets another in destroying a
forest,52 smuggling merchandise into the
country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so
is susceptible to easy assessment as criminal in
character. These forms of aiding or abetting lend
themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the
waters are muddier and the line of sight is
somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore
popular and unchallenged dogmas of cyberspace
use.
According to the 2011 Southeast Asia Digital
Consumer Report, 33% of Filipinos have accessed
the internet within a year, translating to about 31
million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged
countries for social networking.56 Social
networking sites build social relations among

people who, for example, share interests, activities,
backgrounds, or real-life connections.57
Two of the most popular of these sites are
Facebook and Twitter. As of late 2012, 1.2 billion
people with shared interests use Facebook to get in
touch.58 Users register at this site, create a
personal profile or an open book of who they are,
add other users as friends, and exchange
messages, including automatic notifications when
they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which
can be made visible to anyone, depending on the
user’s privacy settings.
If the post is made available to the public, meaning
to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s
screen such as "Like," "Comment," or "Share."
"Like" signifies that the reader likes the posting
while "Comment" enables him to post online his
feelings or views about the same, such as "This is
great!" When a Facebook user "Shares" a posting,
the original "posting" will appear on his own
Facebook profile, consequently making it visible to
his down-line Facebook Friends.
Twitter, on the other hand, is an internet social
networking and microblogging service that enables
its users to send and read short text-based
messages of up to 140 characters. These are
known as "Tweets." Microblogging is the practice of
posting small pieces of digital content—which could
be in the form of text, pictures, links, short videos,
or other media—on the internet. Instead of friends,
a Twitter user has "Followers," those who subscribe
to this particular user’s posts, enabling them to read
the same, and "Following," those whom this
particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can
make his tweets available only to his Followers, or
to the general public. If a post is available to the
public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing
another person’s tweet without the need of copying
and pasting it.
In the cyberworld, there are many actors: a) the
blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun;
d) the internet café that may have provided the
computer used for posting the blog; e) the person
CONSTI LAW II ACJUCO 183
who makes a favorable comment on the blog; and
f) the person who posts a link to the blog site.60
Now, suppose Maria (a blogger) maintains a blog
on WordPress.com (blog service provider). She
needs the internet to access her blog so she
subscribes to Sun Broadband (Internet Service
Provider).
One day, Maria posts on her internet account the
statement that a certain married public official has
an illicit affair with a movie star. Linda, one of
Maria’s friends who sees this post, comments
online, "Yes, this is so true! They are so immoral."
Maria’s original post is then multiplied by her
friends and the latter’s friends, and down the line to
friends of friends almost ad infinitum. Nena, who is
a stranger to both Maria and Linda, comes across
this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter
account. Nena’s "Followers" then "Retweet" the link
to that blog site.
Pamela, a Twitter user, stumbles upon a random
person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately,
Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of
them even press the Share button, resulting in the
further spread of the original posting into tens,
hundreds, thousands, and greater postings.
The question is: are online postings such as
"Liking" an openly defamatory statement,
"Commenting" on it, or "Sharing" it with others, to
be regarded as "aiding or abetting?" In libel in the
physical world, if Nestor places on the office bulletin
board a small poster that says, "Armand is a thief!,"
he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that
could not be libel since he did not author the poster.
If Arthur, passing by and noticing the poster, writes
on it, "Correct!," would that be libel? No, for he
merely expresses agreement with the statement on
the poster. He still is not its author. Besides, it is not
clear if aiding or abetting libel in the physical world
is a crime.
But suppose Nestor posts the blog, "Armand is a
thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves
of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And,
in the complex world of cyberspace expressions of
thoughts, when will one be liable for aiding or

abetting cybercrimes? Where is the venue of the
crime?
Except for the original author of the assailed
statement, the rest (those who pressed Like,
Comment and Share) are essentially knee-jerk
sentiments of readers who may think little or
haphazardly of their response to the original
posting. Will they be liable for aiding or abetting?
And, considering the inherent impossibility of
joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be
filed in court, who will make a choice as to who
should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional
form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such
law will tend to create a chilling effect on the
millions that use this new medium of
communication in violation of their constitutionally-
guaranteed right to freedom of expression.
The United States Supreme Court faced the same
issue in Reno v. American Civil Liberties Union,61
a case involving the constitutionality of the
Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means
of a telecommunications device, of
"obscene or indecent" communications to any
recipient under 18 years of age; and (2) the
knowing use of an interactive computer service to
send to a specific person or persons under 18
years of age or to display in a manner available to a
person under 18 years of age communications that,
in context, depict or describe, in terms "patently
offensive" as measured by contemporary
community standards, sexual or excretory activities
or organs.
Those who challenged the Act claim that the law
violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency
Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of
special concern for two reasons. First, the CDA is a
content-based regulation of speech. The
vagueness of such a regulation raises special U.S.
CONSTI LAW II ACJUCO 184
Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a
criminal statute. In addition to the opprobrium and
stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in
prison for each act of violation. The severity of
criminal sanctions may well cause speakers to
remain silent rather than communicate even
arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect,
coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const.
amend. I concerns than those implicated by certain
civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA),
47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences
some speakers whose messages would be entitled
to constitutional protection. That danger provides
further reason for insisting that the statute not be
overly broad. The CDA’s burden on protected
speech cannot be justified if it could be avoided by
a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a
person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast
across the globe like bad news. Moreover, cyber
libel often goes hand in hand with cyberbullying that
oppresses the victim, his relatives, and friends,
evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the
use of this cyberspace communication technology
to protect a person’s reputation and peace of mind,
cannot adopt means that will unnecessarily and
broadly sweep, invading the area of protected
freedoms.62
If such means are adopted, self-inhibition borne of
fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide
reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and
discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates
chilling effect on those who express themselves
through cyberspace posts, comments, and other

messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded on
the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained
in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the
Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are
used to mount ‘facial’ challenges to penal statutes
not involving free speech."
In an "as applied" challenge, the petitioner who
claims a violation of his constitutional right can
raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one
can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the
statute based solely on the violation of the rights of
third persons not before the court. This rule is also
known as the prohibition against third-party
standing.66
But this rule admits of exceptions. A petitioner may
for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute
where it involves free speech on grounds of
overbreadth or vagueness of the statute.
The rationale for this exception is to counter the
"chilling effect" on protected speech that comes
from statutes violating free speech. A person who
does not know whether his speech constitutes a
crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague
law thus chills him into silence.67
As already stated, the cyberspace is an
incomparable, pervasive medium of
communication. It is inevitable that any government
threat of punishment regarding certain uses of the
medium creates a chilling effect on the
constitutionally-protected freedom of expression of
the great masses that use it. In this case, the
particularly complex web of interaction on social
CONSTI LAW II ACJUCO 185
media websites would give law enforcers such
latitude that they could arbitrarily or selectively
enforce the law.
Who is to decide when to prosecute persons who
boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the
court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while
another comment did not?
Of course, if the "Comment" does not merely react
to the original posting but creates an altogether
new defamatory story against Armand like "He
beats his wife and children," then that should be
considered an original posting published on the
internet. Both the penal code and the cybercrime
law clearly punish authors of defamatory
publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade
in the internet, it will destroy relationships and,
under certain circumstances, will generate enmity
and tension between social or economic groups,
races, or religions, exacerbating existing tension in
their relationships.
In regard to the crime that targets child
pornography, when "Google procures, stores, and
indexes child pornography and facilitates the
completion of transactions involving the
dissemination of child pornography," does this
make Google and its users aiders and abettors in
the commission of child pornography crimes?68
Byars highlights a feature in the American law on
child pornography that the Cybercrimes law lacks—
the exemption of a provider or notably a plain user
of interactive computer service from civil liability for
child pornography as follows:
No provider or user of an interactive computer
service shall be treated as the publisher or speaker
of any information provided by another information
content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict
access to or availability of material that the provider
or user considers to be obscene...whether or not
such material is constitutionally protected.69
When a person replies to a Tweet containing child
pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography?

When a user downloads the Facebook mobile
application, the user may give consent to Facebook
to access his contact details. In this way, certain
information is forwarded to third parties and
unsolicited commercial communication could be
disseminated on the basis of this information.70 As
the source of this information, is the user aiding the
distribution of this communication? The legislature
needs to address this clearly to relieve users of
annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is
unconstitutional. Its vagueness raises
apprehension on the part of internet users because
of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or
abetting ensnares all the actors in the cyberspace
front in a fuzzy way. What is more, as the
petitioners point out, formal crimes such as libel are
not punishable unless consummated.71 In the
absence of legislation tracing the interaction of
netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section
4(c)(4) on Libel, Section 4(c)(3) on Unsolicited
Commercial Communications, and Section 4(c)(2)
on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission
of cybercrimes under Section 5 should be permitted
to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)
(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices,
Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1)
on Cybersex. None of these offenses borders on
the exercise of the freedom of expression.
The crime of willfully attempting to commit any of
these offenses is for the same reason not
objectionable. A hacker may for instance have
done all that is necessary to illegally access
another party’s computer system but the security
employed by the system’s lawful owner could
frustrate his effort. Another hacker may have
gained access to usernames and passwords of
others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes
any person who willfully attempts to commit this
specific offense is not upheld, the owner of the
username and password could not file a complaint
against him for attempted hacking. But this is not
CONSTI LAW II ACJUCO 186
right. The hacker should not be freed from liability
simply because of the vigilance of a lawful owner or
his supervisor.
Petitioners of course claim that Section 5 lacks
positive limits and could cover the innocent.73
While this may be true with respect to cybercrimes
that tend to sneak past the area of free expression,
any attempt to commit the other acts specified in
Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),
Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and
abetting the commission of such acts can be
identified with some reasonable certainty through
adroit tracking of their works. Absent concrete proof
of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the
Revised Penal Code, as amended, and special
laws, if committed by, through and with the use of
information and communications technologies shall
be covered by the relevant provisions of this Act:
Provided, That the penalty to be imposed shall be
one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special
laws, as the case may be.
Section 6 merely makes commission of existing
crimes through the internet a qualifying
circumstance. As the Solicitor General points out,
there exists a substantial distinction between
crimes committed through the use of information
and communications technology and similar crimes
committed using other means. In using the
technology in question, the offender often evades
identification and is able to reach far more victims
or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution
under this Act shall be without prejudice to any
liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7
merely expresses the settled doctrine that a single
set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and
the Revised Penal Code. When two different laws
define two crimes, prior jeopardy as to one does
not bar prosecution of the other although both
offenses arise from the same fact, if each crime
involves some important act which is not an
essential element of the other.74 With the
exception of the crimes of online libel and online
child pornography, the Court would rather leave the
determination of the correct application of Section 7
to actual cases.
Online libel is different. There should be no
question that if the published material on print, said
to be libelous, is again posted online or vice versa,
that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of
Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175
involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG
itself claims that online libel under Section 4(c)(4) is
not a new crime but is one already punished under
Article 353. Section 4(c)(4) merely establishes the
computer system as another means of
publication.75 Charging the offender under both
laws would be a blatant violation of the proscription
against double jeopardy.76
The same is true with child pornography committed
online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already
covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus,
charging the offender under both Section 4(c)(2)
and ACPA would likewise be tantamount to a
violation of the constitutional prohibition against
double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any
of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (Ph₱200,000.00) up
CONSTI LAW II ACJUCO 187
to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under
Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more
than Five hundred thousand pesos
(Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed
against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred
thousand pesos (Ph₱500,000.00) up to maximum
amount commensurate to the damage incurred or
both, shall be imposed.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or
a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million
pesos (Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the
penalty to be imposed shall be one (1) degree
higher than that provided for in Republic Act No.
9775, if committed through a computer system.
Any person found guilty of any of the punishable
acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a
fine of at least Fifty thousand pesos
(Ph₱50,000.00) but not exceeding Two hundred
fifty thousand pesos (Ph₱250,000.00) or both.
Any person found guilty of any of the punishable
acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of
the prescribed penalty for the offense or a fine of at
least One hundred thousand pesos
(Ph₱100,000.00) but not exceeding Five hundred
thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following
crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of
Computer Data and Systems; 4(b) on Computer-
related Offenses; 4(a)(5) on Misuse of Devices;
when the crime punishable under 4(a) is committed
against critical infrastructure; 4(c)(1) on Cybersex;

4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and
Section 5 on Aiding or Abetting, and Attempt in the
Commission of Cybercrime.
The matter of fixing penalties for the commission of
crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe
penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil
sought to be punished. The power to determine
penalties for offenses is not diluted or improperly
wielded simply because at some prior time the act
or omission was but an element of another offense
or might just have been connected with another
crime.77 Judges and magistrates can only interpret
and apply them and have no authority to modify or
revise their range as determined by the legislative
department.
The courts should not encroach on this prerogative
of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. —
Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or
electronic means traffic data in real-time associated
with specified communications transmitted by
means of a computer system.
Traffic data refer only to the communication’s
origin, destination, route, time, date, size, duration,
or type of underlying service, but not content, nor
identities.
All other data to be collected or seized or disclosed
will require a court warrant.
Service providers are required to cooperate and
assist law enforcement authorities in the collection
or recording of the above-stated information.
The court warrant required under this section shall
only be issued or granted upon written application
and the examination under oath or affirmation of
the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable
grounds to believe that any of the crimes
enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2)
CONSTI LAW II ACJUCO 188
that there are reasonable grounds to believe that
evidence that will be obtained is essential to the
conviction of any person for, or to the solution of, or
to the prevention of, any such crimes; and (3) that
there are no other means readily available for
obtaining such evidence.
Petitioners assail the grant to law enforcement
agencies of the power to collect or record traffic
data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim
that data showing where digital messages come
from, what kind they are, and where they are
destined need not be incriminating to their senders
or recipients before they are to be protected.
Petitioners invoke the right of every individual to
privacy and to be protected from government
snooping into the messages or information that
they send to one another.
The first question is whether or not Section 12 has
a proper governmental purpose since a law may
require the disclosure of matters normally
considered private but then only upon showing that
such requirement has a rational relation to the
purpose of the law,79 that there is a compelling
State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the
legitimate concerns of the State against
constitutional guarantees.81
Undoubtedly, the State has a compelling interest in
enacting the cybercrime law for there is a need to
put order to the tremendous activities in cyberspace
for public good.82 To do this, it is within the realm
of reason that the government should be able to
monitor traffic data to enhance its ability to combat
all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the
collection or recording of traffic data is a part, aims
to provide law enforcement authorities with the
power they need for spotting, preventing, and
investigating crimes committed in cyberspace.
Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest
Convention on Cybercrimes requires signatory
countries to adopt legislative measures to empower
state authorities to collect or record "traffic data, in
real time, associated with specified
communications."83 And this is precisely what
Section 12 does. It empowers law enforcement

agencies in this country to collect or record such
data.
But is not evidence of yesterday’s traffic data, like
the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,84
transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or
consideration;86 and producing child
pornography87 could easily evade detection and
prosecution by simply moving the physical location
of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes
from virtually anywhere: from internet cafés, from
kindred places that provide free internet services,
and from unregistered mobile internet connectors.
Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do
not have listed addresses and can neither be
located nor identified. There are many ways the
cyber criminals can quickly erase their tracks.
Those who peddle child pornography could use
relays of computers to mislead law enforcement
authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection
or recording and a subsequent recourse to court-
issued search and seizure warrant that can
succeed in ferreting them out.
Petitioners of course point out that the provisions of
Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and
invading the people’s right to privacy. The concern
is understandable. Indeed, the Court recognizes in
Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of
privacy wherein governmental powers may not
intrude, and that there exists an independent
constitutional right of privacy. Such right to be left
alone has been regarded as the beginning of all
freedoms.89
But that right is not unqualified. In Whalen v.
Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves
the right to independence in making certain
important decisions, while informational privacy
refers to the interest in avoiding disclosure of
personal matters. It is the latter right—the right to
informational privacy—that those who oppose
CONSTI LAW II ACJUCO 189
government collection or recording of traffic data in
real-time seek to protect.
Informational privacy has two aspects: the right not
to have private information disclosed, and the right
to live freely without surveillance and intrusion.91 In
determining whether or not a matter is entitled to
the right to privacy, this Court has laid down a two-
fold test. The first is a subjective test, where one
claiming the right must have an actual or legitimate
expectation of privacy over a certain matter. The
second is an objective test, where his or her
expectation of privacy must be one society is
prepared to accept as objectively reasonable.92
Since the validity of the cybercrime law is being
challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to
Section 12 applies to all information and
communications technology (ICT) users, meaning
the large segment of the population who use all
sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy
is to be measured from the general public’s point of
view. Without reasonable expectation of privacy,
the right to it would have no basis in fact.
As the Solicitor General points out, an ordinary ICT
user who courses his communication through a
service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For
example, an ICT user who writes a text message
intended for another ICT user must furnish his
service provider with his cellphone number and the
cellphone number of his recipient, accompanying
the message sent. It is this information that creates
the traffic data. Transmitting communications is
akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through
the postal service. Those who post letters have no
expectations that no one will read the information
appearing outside the envelope.
Computer data—messages of all kinds—travel
across the internet in packets and in a way that
may be likened to parcels of letters or things that
are sent through the posts. When data is sent from
any one source, the content is broken up into
packets and around each of these packets is a
wrapper or header. This header contains the traffic
data: information that tells computers where the
packet originated, what kind of data is in the packet
(SMS, voice call, video, internet chat messages,

email, online browsing data, etc.), where the packet
is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent
through the internet at times across the ocean do
not disclose the actual names and addresses
(residential or office) of the sender and the
recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer
system to another where their contents are pieced
back together.
Section 12 does not permit law enforcement
authorities to look into the contents of the
messages and uncover the identities of the sender
and the recipient.
For example, when one calls to speak to another
through his cellphone, the service provider’s
communication’s system will put his voice message
into packets and send them to the other person’s
cellphone where they are refitted together and
heard. The latter’s spoken reply is sent to the caller
in the same way. To be connected by the service
provider, the sender reveals his cellphone number
to the service provider when he puts his call
through. He also reveals the cellphone number to
the person he calls. The other ways of
communicating electronically follow the same basic
pattern.
In Smith v. Maryland,94 cited by the Solicitor
General, the United States Supreme Court
reasoned that telephone users in the ‘70s must
realize that they necessarily convey phone
numbers to the telephone company in order to
complete a call. That Court ruled that even if there
is an expectation that phone numbers one dials
should remain private, such expectation is not one
that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that
they cannot communicate or exchange data with
one another over cyberspace except through some
service providers to whom they must submit certain
traffic data that are needed for a successful
cyberspace communication. The conveyance of
this data takes them out of the private sphere,
making the expectation to privacy in regard to them
an expectation that society is not prepared to
recognize as reasonable.
The Court, however, agrees with Justices Carpio
and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together,
CONSTI LAW II ACJUCO 190
and analyzed, they reveal patterns of activities
which can then be used to create profiles of the
persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s
close associations, religious views, political
affiliations, even sexual preferences. Such
information is likely beyond what the public may
expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides
been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities,
"with due cause," to collect or record by technical or
electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause"
has no precedent in law or jurisprudence and that
whether there is due cause or not is left to the
discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not
required to define the meaning of every word it
uses in drafting the law.
Indeed, courts are able to save vague provisions of
law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails
to hint at the meaning it intends for the phrase "due
cause." The Solicitor General suggests that "due
cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court
cannot draw this meaning since Section 12 does
not even bother to relate the collection of data to
the probable commission of a particular crime. It
just says, "with due cause," thus justifying a general
gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for
which data collection will be used. Will the law
enforcement agencies use the traffic data to identify
the perpetrator of a cyber attack? Or will it be used
to build up a case against an identified suspect?
Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law
enforcement agencies is too sweeping and lacks
restraint. While it says that traffic data collection
should not disclose identities or content data, such
restraint is but an illusion. Admittedly, nothing can
prevent law enforcement agencies holding these
data in their hands from looking into the identity of
their sender or receiver and what the data contains.

This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from
certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic
data to those "associated with specified
communications." But this supposed limitation is no
limitation at all since, evidently, it is the law
enforcement agencies that would specify the target
communications. The power is virtually limitless,
enabling law enforcement authorities to engage in
"fishing expedition," choosing whatever specified
communication they want. This evidently threatens
the right of individuals to privacy.
The Solicitor General points out that Section 12
needs to authorize collection of traffic data "in real
time" because it is not possible to get a court
warrant that would authorize the search of what is
akin to a "moving vehicle." But warrantless search
is associated with a police officer’s determination of
probable cause that a crime has been committed,
that there is no opportunity for getting a warrant,
and that unless the search is immediately carried
out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit
that Section 12 provides minimal protection to
internet users and that the procedure envisioned by
the law could be better served by providing for
more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough.
The grant of the power to track cyberspace
communications in real time and determine their
sources and destinations must be narrowly drawn
to preclude abuses.95
Petitioners also ask that the Court strike down
Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine.
These doctrines however, have been consistently
held by this Court to apply only to free speech
cases. But Section 12 on its own neither regulates
nor punishes any type of speech. Therefore, such
analysis is unnecessary.
This Court is mindful that advances in technology
allow the government and kindred institutions to
monitor individuals and place them under
surveillance in ways that have previously been
impractical or even impossible. "All the forces of a
technological age x x x operate to narrow the area
CONSTI LAW II ACJUCO 191
of privacy and facilitate intrusions into it. In modern
terms, the capacity to maintain and support this
enclave of private life marks the difference between
a democratic and a totalitarian society."96 The
Court must ensure that laws seeking to take
advantage of these technologies be written with
specificity and definiteness as to ensure respect for
the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The
integrity of traffic data and subscriber information
relating to communication services provided by a
service provider shall be preserved for a minimum
period of six (6) months from the date of the
transaction. Content data shall be similarly
preserved for six (6) months from the date of
receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time
extension for another six (6) months: Provided,
That once computer data preserved, transmitted or
stored by a service provider is used as evidence in
a case, the mere furnishing to such service provider
of the transmittal document to the Office of the
Prosecutor shall be deemed a notification to
preserve the computer data until the termination of
the case.
The service provider ordered to preserve computer
data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13
constitutes an undue deprivation of the right to
property. They liken the data preservation order
that law enforcement authorities are to issue as a
form of garnishment of personal property in civil
forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data
that essentially belong to them.
No doubt, the contents of materials sent or received
through the internet belong to their authors or
recipients and are to be considered private
communications. But it is not clear that a service
provider has an obligation to indefinitely keep a
copy of the same as they pass its system for the
benefit of users. By virtue of Section 13, however,
the law now requires service providers to keep

traffic data and subscriber information relating to
communication services for at least six months
from the date of the transaction and those relating
to content data for at least six months from receipt
of the order for their preservation.
Actually, the user ought to have kept a copy of that
data when it crossed his computer if he was so
minded. The service provider has never assumed
responsibility for their loss or deletion while in its
keep.
At any rate, as the Solicitor General correctly points
out, the data that service providers preserve on
orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not
unduly hamper the normal transmission or use of
the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law
enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person
or service provider to disclose or submit
subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation
to a valid complaint officially docketed and
assigned for investigation and the disclosure is
necessary and relevant for the purpose of
investigation.
The process envisioned in Section 14 is being
likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a
judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial
function. Executive agencies have the power to
issue subpoena as an adjunct of their investigatory
powers.98
Besides, what Section 14 envisions is merely the
enforcement of a duly issued court warrant, a
function usually lodged in the hands of law
enforcers to enable them to carry out their
executive functions. The prescribed procedure for
disclosure would not constitute an unlawful search
or seizure nor would it violate the privacy of
communications and correspondence. Disclosure
can be made only after judicial intervention.
CONSTI LAW II ACJUCO 192
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of
Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement
authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to
conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer
data storage medium;
(b) To make and retain a copy of those computer
data secured;
(c) To maintain the integrity of the relevant stored
computer data;
(d) To conduct forensic analysis or examination of
the computer data storage medium; and
(e) To render inaccessible or remove those
computer data in the accessed computer or
computer and communications network.
Pursuant thereof, the law enforcement authorities
may order any person who has knowledge about
the functioning of the computer system and the
measures to protect and preserve the computer
data therein to provide, as is reasonable, the
necessary information, to enable the undertaking of
the search, seizure and examination.
Law enforcement authorities may request for an
extension of time to complete the examination of
the computer data storage medium and to make a
return thereon but in no case for a period longer
than thirty (30) days from date of approval by the
court.
Petitioners challenge Section 15 on the assumption
that it will supplant established search and seizure
procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement
authorities that would ensure the proper collection,
preservation, and use of computer system or data
that have been seized by virtue of a court warrant.
The exercise of these duties do not pose any threat
on the rights of the person from whom they were

taken. Section 15 does not appear to supersede
existing search and seizure rules but merely
supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon
expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement
authorities, as the case may be, shall immediately
and completely destroy the computer data subject
of a preservation and examination.
Section 17 would have the computer data, previous
subject of preservation or examination, destroyed
or deleted upon the lapse of the prescribed period.
The Solicitor General justifies this as necessary to
clear up the service provider’s storage systems and
prevent overload. It would also ensure that
investigations are quickly concluded.
Petitioners claim that such destruction of computer
data subject of previous preservation or
examination violates the user’s right against
deprivation of property without due process of law.
But, as already stated, it is unclear that the user
has a demandable right to require the service
provider to have that copy of the data saved
indefinitely for him in its storage system. If he
wanted them preserved, he should have saved
them in his computer when he generated the data
or received it. He could also request the service
provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to
restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to
Computer Data.— When a computer data is prima
facie found to be in violation of the provisions of this
Act, the DOJ shall issue an order to restrict or block
access to such computer data.
Petitioners contest Section 19 in that it stifles
freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor
General concedes that this provision may be
unconstitutional. But since laws enjoy a
presumption of constitutionality, the Court must
CONSTI LAW II ACJUCO 193
satisfy itself that Section 19 indeed violates the
freedom and right mentioned.
Computer data99 may refer to entire programs or
lines of code, including malware, as well as files
that contain texts, images, audio, or video
recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it
is indisputable that computer data, produced or
created by their writers or authors may constitute
personal property. Consequently, they are
protected from unreasonable searches and
seizures, whether while stored in their personal
computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution
provides that the right to be secure in one’s papers
and effects against unreasonable searches and
seizures of whatever nature and for any purpose
shall be inviolable. Further, it states that no search
warrant shall issue except upon probable cause to
be determined personally by the judge. Here, the
Government, in effect, seizes and places the
computer data under its control and disposition
without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.
The content of the computer data can also
constitute speech. In such a case, Section 19
operates as a restriction on the freedom of
expression over cyberspace. Certainly not all forms
of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of
expression as illegal. But for an executive officer to
seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the
opinion that such content violates some law, for to
do so would make him judge, jury, and executioner
all rolled into one.100
Not only does Section 19 preclude any judicial
intervention, but it also disregards jurisprudential
guidelines established to determine the validity of
restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination
of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present
danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime
law. Taking Section 6 into consideration, this can
actually be made to apply in relation to any penal
provision. It does not take into consideration any of
the three tests mentioned above.

The Court is therefore compelled to strike down
Section 19 for being violative of the constitutional
guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with
the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No.
1829 with imprisonment of prision correctional in its
maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every
noncompliance with an order issued by law
enforcement authorities.
Petitioners challenge Section 20, alleging that it is a
bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished
as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates
elements of the offense which are defined therein.
If Congress had intended for Section 20 to
constitute an offense in and of itself, it would not
have had to make reference to any other statue or
provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its
maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of
suspects and the investigation and prosecution of
criminal cases by committing any of the following
acts:
x x x.
Thus, the act of non-compliance, for it to be
punishable, must still be done "knowingly or
willfully." There must still be a judicial determination
of guilt, during which, as the Solicitor General
assumes, defense and justifications for non-
compliance may be raised. Thus, Section 20 is
CONSTI LAW II ACJUCO 194
valid insofar as it applies to the provisions of
Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating
Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the
administrative supervision of the Office of the
President, for policy coordination among concerned
agencies and for the formulation and enforcement
of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall
have the following powers and functions:
(a) To formulate a national cybersecurity plan and
extend immediate assistance of real time
commission of cybercrime offenses through a
computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly
delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it
to follow.
In order to determine whether there is undue
delegation of legislative power, the Court has
adopted two tests: the completeness test and the
sufficient standard test. Under the first test, the law
must be complete in all its terms and conditions
when it leaves the legislature such that when it
reaches the delegate, the only thing he will have to
do is to enforce it.1avvphi1 The second test
mandates adequate guidelines or limitations in the
law to determine the boundaries of the delegate’s
authority and prevent the delegation from running
riot.103
Here, the cybercrime law is complete in itself when
it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools,
policies, risk management approaches, actions,

training, best practices, assurance and
technologies that can be used to protect cyber
environment and organization and user’s
assets.104 This definition serves as the parameters
within which CICC should work in formulating the
cybersecurity plan.
Further, the formulation of the cybersecurity plan is
consistent with the policy of the law to "prevent and
combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the
domestic and international levels, and by providing
arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in
the interest of law and order, which has been
considered as sufficient standard.106 Hence,
Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that
penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or
recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a
computer system without right;
b. Section 4(a)(3) that penalizes data interference,
including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or
acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the
use or misuse of identifying information belonging
to another;
e. Section 4(c)(1) that penalizes cybersex or the
lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
CONSTI LAW II ACJUCO 195
f. Section 4(c)(2) that penalizes the production of
child pornography;
g. Section 6 that imposes penalties one degree
higher when crimes defined under the Revised
Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to preserve
traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure,
and examination of computer data under a court-
issued warrant;
l. Section 17 that authorizes the destruction of
previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice
in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime
Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers
and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised
Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as
VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and
attempt in the commission of cybercrimes as VA L I
D and CONSTITUTIONAL only in relation to
Section 4(a)(1) on Illegal Access, Section 4(a)(2)
on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System
 CONSTI LAW II ACJUCO 196

Interference, Section 4(a)(5) on Misuse of Devices,

Section 4(a)(6) on Cyber-squatting, Section 4(b)(1)
on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1)
on Cybersex; but VOID and UNCONSTITUTIONAL
with respect to Sections 4(c)(2) on Child
Pornography, 4(c)(3) on Unsolicited Commercial
Communications, and 4(c)(4) on online
Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE

DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the
offender under both the Revised Penal Code and
Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender

under both Section 4(c)(4) of Republic Act 10175
and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against
double jeopardy; as well as

2. Child pornography committed online as to which,

charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the
Anti-Child Pornography Act of 2009 also constitutes
a violation of the same proscription, and, in respect
to these, is VOID and UNCONSTITUTIONAL.

SO ORDERED.

CHAPLINSKY V. NEW HAMPSHIRE,
315 U.S. 568 (1942)
Argued February 5, 1942
Decided March 9, 1942
APPEAL FROM THE SUPREME COURT OF NEW
HAMPSHIRE
Syllabus
1. That part of c. 378, § 2, of the Public Law of New
Hampshire which forbids under penalty that any
person shall address "any offensive, derisive or
annoying word to any other person who is lawfully
in any street or other public place," or "call him by
any offensive or derisive name," was construed by
the Supreme Court of the State, in this case and
before this case arose, as limited to the use in a
public place of words directly tending to cause a
breach of the peace by provoking the person
addressed to acts of violence.
Held:
(1) That, so construed, it is sufficiently definite and
specific to comply with requirements of due process
of law. P. 315 U. S. 573.
(2) That, as applied to a person who, on a public
street, addressed another as a "damned Fascist"
and a "damned racketeer," it does not substantially
or unreasonably impinge upon freedom of speech.
P. 315 U. S. 574.
CONSTI LAW II ACJUCO 197
(3) The refusal of the state court to admit evidence
offered by the defendant tending to prove
provocation and evidence bearing on the truth or
falsity of the utterances charged is open to no
constitutional objection. P. 315 U. S. 574.
2. The Court notices judicially that the appellations
"damned racketeer" and "damned Fascist" are
epithets likely to provoke the average person to
retaliation, and thereby cause a breach of the
peace. P. 315 U. S. 574
91 N.H. 310, 18 A.2d 754, affirmed.
APPEAL from a judgment affirming a conviction
under a state law denouncing the use of offensive
words when addressed by one person to another in
a public place.
Page 315 U. S. 569
MR. JUSTICE MURPHY delivered the opinion of
the Court.
Appellant, a member of the sect known as
Jehovah's Witnesses, was convicted in the
municipal court of Rochester, New Hampshire, for
violation of Chapter 378, § 2, of the Public Laws of
New Hampshire:
"No person shall address any offensive, derisive or
annoying word to any other person who is lawfully
in any street or other public place, nor call him by
any offensive or derisive name, nor make any noise
or exclamation in his presence and hearing with
intent to deride, offend or annoy him, or to prevent
him from pursuing his lawful business or
occupation."
The complaint charged that appellant,
"with force and arms, in a certain public place in
said city of Rochester, to-wit, on the public sidewalk
on the easterly side of Wakefield Street, near unto
the entrance of the City Hall, did unlawfully repeat
the words following, addressed to the complainant,
that is to say, 'You are a God damned racketeer'
and 'a damned Fascist and the whole government
of Rochester are Fascists or agents of Fascists,'
the same being offensive, derisive and annoying
words and names."

Upon appeal, there was a trial de novo of appellant
before a jury in the Superior Court. He was found
guilty, and the judgment of conviction was affirmed
by the Supreme Court of the State. 91 N.H. 310, 18
A.2d 754.
By motions and exceptions, appellant raised the
questions that the statute was invalid under the
Fourteenth Amendment of the Constitution of the
United States in that it placed an unreasonable
restraint on freedom of speech, freedom of the
press, and freedom of worship, and because it was
vague and indefinite. These contentions were
overruled, and the case comes here on appeal.
There is no substantial dispute over the facts.
Chaplinsky was distributing the literature of his sect
on the streets of Rochester on a busy Saturday
afternoon. Members of the local citizenry
complained to the City Marshal, Bowering, that
Chaplinsky was denouncing all religion as a
"racket." Bowering told them that Chaplinsky was
lawfully engaged, and then warned Chaplinsky that
the crowd was getting restless. Some time later, a
disturbance occurred and the traffic officer on duty
at the busy intersection started with Chaplinsky for
the police station, but did not inform him that he
was under arrest or that he was going to be
arrested. On the way, they encountered Marshal
Bowering, who had been advised that a riot was
under way and was therefore hurrying to the scene.
Bowering repeated his earlier warning to
Chaplinsky, who then addressed to Bowering the
words set forth in the complaint.
Chaplinsky's version of the affair was slightly
different. He testified that, when he met Bowering,
he asked him to arrest the ones responsible for the
disturbance. In reply, Bowering cursed him and told
him to come along. Appellant admitted that he said
the words charged in the complaint, with the
exception of the name of the Deity.
Over appellant's objection, the trial court excluded,
as immaterial, testimony relating to appellant's
mission "to preach the true facts of the Bible," his
treatment at the hands of the crowd, and the
alleged neglect of duty on the part of the police.
This action was approved by the court below, which
held that neither provocation nor the truth of the
utterance would constitute a defense to the charge.
It is now clear that "Freedom of speech and
freedom of the press, which are protected by the
CONSTI LAW II ACJUCO 198
First Amendment from infringement by Congress,
are among the fundamental personal rights and
liberties which are protected by the Fourteenth
Amendment from invasion by state action."
Lovell v. Griffin, 303 U. S. 444, 303 U. S. 450.
[Footnote 1] Freedom of worship is similarly
sheltered. Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 303.
Appellant assails the statute as a violation of all
three freedoms, speech, press and worship, but
only an attack on the basis of free speech is
warranted. The spoken, not the written, word is
involved. And we cannot conceive that cursing a
public officer is the exercise of religion in any sense
of the term. But even if the activities of the
appellant which preceded the incident could be
viewed as religious in character, and therefore
entitled to the protection of the Fourteenth
Amendment, they would not cloak him with
immunity from the legal consequences for
concomitant acts committed in violation of a valid
criminal statute. We turn, therefore, to an
examination of the statute itself.
Allowing the broadest scope to the language and
purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not
absolute at all times and under all circumstances.
[Footnote 2] There are certain well defined and
narrowly limited classes of speech, the prevention
and punishment of which have never been thought
to raise an Constitutional problem. [Footnote 3]
These include the lewd and obscene, the profane,
the libelous, and the insulting or "fighting" words --
those which, by their very utterance, inflict injury or
tend to incite an immediate breach of the peace.
[Footnote 4] It has been well observed that such
utterances are no essential part of any exposition of
ideas, and are of such slight social 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. [Footnote 5]
"Resort to epithets or personal abuse is not in any
proper sense communication of information or
opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no
question under that instrument."

Cantwell v. Connecticut, 310 U. S. 296, 310 U. S.
309-310.
The state statute here challenged comes to us
authoritatively construed by the highest court of
New Hampshire. It has two provisions -- the first
relates to words or names addressed to another in
a public place; the second refers to noises and
exclamations. The court said:
"The two provisions are distinct. One may stand
separately from the other. Assuming, without
holding, that the second were unconstitutional, the
first could stand if constitutional."
We accept that construction of severability and limit
our consideration to the first provision of the
statute. [Footnote 6]
On the authority of its earlier decisions, the state
court declared that the statute's purpose was to
preserve the public peace, no words being
"forbidden except such as have a direct tendency
to cause acts of violence by the persons to whom,
individually, the remark is addressed." [Footnote 7]
It was further said:
"The word 'offensive' is not to be defined in terms of
what a particular addressee thinks. . . . The test is
what men of common intelligence would
understand would be words likely to cause an
average addressee to fight. . . . The English
language has a number of words and expressions
which, by general consent, are 'fighting words'
when said without a disarming smile. . . . [S]uch
words, as ordinary men know, are likely to cause a
fight. So are threatening, profane or obscene
revilings. Derisive and annoying words can be
taken as coming within the purview of the statute as
heretofore interpreted only when they have this
characteristic of plainly tending to excite the
addressee to a breach of the peace. . . . The
statute, as construed, does no more than prohibit
the face-to-face words plainly likely to cause a
breach of the peace by the addressee, words
whose speaking constitutes a breach of the peace
by the speaker -- including 'classical fighting words,'
words in current use less 'classical' but equally
likely to cause violence, and other disorderly words,
including profanity, obscenity and threats."
We are unable to say that the limited scope of the
statute as thus construed contravenes the
Constitutional right of free expression. It is a statute
CONSTI LAW II ACJUCO 199
narrowly drawn and limited to define and punish
specific conduct lying within the domain of state
power, the use in a public place of words likely to
cause a breach of the peace. Cf. Cantwell v.
Connecticut, 310 U. S. 296, 310 U. S. 311;
Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 105.
This conclusion necessarily disposes of appellant's
contention that the statute is so vague and
indefinite as to render a conviction thereunder a
violation of due process. A statute punishing verbal
acts, carefully drawn so as not unduly to impair
liberty of expression, is not too vague for a criminal
law. Cf. Fox v. Washington 236 U.S. 273, 236 U. S.
277. [Footnote 8]
Nor can we say that the application of the statute to
the facts disclosed by the record substantially or
unreasonably impinges upon the privilege of free
speech. Argument is unnecessary to demonstrate
that the appellations "damned racketeer" and
"damned Fascist" are epithets likely to provoke the
average person to retaliation, and thereby cause a
breach of the peace.
The refusal of the state court to admit evidence of
provocation and evidence bearing on the truth or
falsity of the utterances is open to no Constitutional
objection. Whether the facts sought to be proved by
such evidence constitute a defense to the charge,
or may be shown in mitigation, are questions for the
state court to determine. Our function is fulfilled by
a determination that the challenged statute, on its
face and as applied, doe not contravene the
Fourteenth Amendment.
Affirmed.

G.R. No. 135306 January 28, 2003
MVRS PUBLICATIONS, INC., MARS C.
LACONSAY, MYLA C. AGUJA and AGUSTINO
G. BINEGAS, JR., petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC., ABDULRAHMAN R.T.
LINZAG, IBRAHIM F.P. ARCILLA, ABDUL
RASHID DE GUZMAN, AL-FARED DA SILVA and
IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall
fight to the death to make it possible for you to
continue writing it. —
Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once
again the basic liberties to free speech and free
press — liberties that belong as well, if not more, to
those who question, who do not conform, who
differ. For the ultimate good which we all strive to
achieve for ourselves and our posterity can better
be reached by a free exchange of ideas, where the
best test of truth is the power of the thought to get
itself accepted in the competition of the free market
— not just the ideas we desire, but including those
thoughts we despise.1
CONSTI LAW II ACJUCO 200
ISLAMIC DA'WAH COUNCIL OF THE
PHILIPPINES, INC., a local federation of more than
seventy (70) Muslim religious organizations, and
individual Muslims ABDULRAHMAN R.T. LINZAG,
IBRAHIM F.P. ARCILLA, ABDUL RASHID DE
GUZMAN, AL-FARED DA SILVA and IBRAHIM
B.A. JUNIO, filed in the Regional Trial Court of
Manila a complaint for damages in their own behalf
and as a class suit in behalf of the Muslim
members nationwide against MVRS
PUBLICATIONS, INC., MARS C. LACONSAY,
MYLA C. AGUJA and AGUSTINO G. BINEGAS,
JR., arising from an article published in the 1
August 1992 issue of Bulgar, a daily tabloid. The
article reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong
bagay. Hindi nila ito kailangang kainin kahit na sila
pa ay magutom at mawalan ng ulam sa tuwing sila
ay kakain. Ginagawa nila itong Diyos at sinasamba
pa nila ito sa tuwing araw ng kanilang pangingilin
lalung-lalo na sa araw na tinatawag nilang
'Ramadan'."
The complaint alleged that the libelous statement
was insulting and damaging to the Muslims; that
these words alluding to the pig as the God of the
Muslims was not only published out of sheer
ignorance but with intent to hurt the feelings, cast
insult and disparage the Muslims and Islam, as a
religion in this country, in violation of law, public
policy, good morals and human relations; that on
account of these libelous words Bulgar insulted not
only the Muslims in the Philippines but the entire
Muslim world, especially every Muslim individual in
non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G.
BINEGAS, JR., in their defense, contended that the
article did not mention respondents as the object of
the article and therefore were not entitled to
damages; and, that the article was merely an
expression of belief or opinion and was published
without malice nor intention to cause damage,
prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the
complaint holding that the plaintiffs failed to

establish their cause of action since the persons
allegedly defamed by the article were not
specifically identified —
It must be noted that the persons allegedly
defamed, the herein plaintiffs, were not identified
with specificity. The subject article was directed at
the Muslims without mentioning or identifying the
herein plaintiffs x x x. It is thus apparent that the
alleged libelous article refers to the larger
collectivity of Muslims for which the readers of the
libel could not readily identify the personalities of
the persons defamed. Hence, it is difficult for an
individual Muslim member to prove that the
defamatory remarks apply to him. The evidence
presented in this case failed to convince this court
that, indeed, the defamatory remarks really applied
to the herein plaintiffs.3
On 27 August 1998 the Court of Appeals reversed
the decision of the trial court. It opined that it was
"clear from the disputed article that the defamation
was directed to all adherents of the Islamic faith. It
stated that pigs were sacred and idolized as god by
members of the Muslim religion. This libelous
imputation undeniably applied to the plaintiff-
appellants who are Muslims sharing the same
religious beliefs." It added that the suit for damages
was a "class suit" and that ISLAMIC DA'WAH
COUNCIL OF THE PHILIPPINES, INC.'s religious
status as a Muslim umbrella organization gave it
the requisite personality to sue and protect the
interests of all Muslims.4
Hence, the instant petition for review assailing the
findings of the appellate court (a) on the existence
of the elements of libel, (b) the right of respondents
to institute the class suit, and, (c) the liability of
petitioners for moral damages, exemplary
damages, attorney's fees and costs of suit.
Defamation, which includes libel and slander,
means the offense of injuring a person's character,
fame or reputation through false and malicious
statements.5 It is that which tends to injure
reputation or to diminish the esteem, respect, good
will or confidence in the plaintiff or to excite
derogatory feelings or opinions about the plaintiff.6
It is the publication of anything which is injurious to
the good name or reputation of another or tends to
bring him into disrepute.7 Defamation is an
invasion of a relational interest since it involves the
opinion which others in the community may have,
or tend to have, of the plaintiff.8
CONSTI LAW II ACJUCO 201
It must be stressed that words which are merely
insulting are not actionable as libel or slander per
se, and mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether
written or spoken, do not constitute a basis for an
action for defamation in the absence of an
allegation for special damages.9 The fact that the
language is offensive to the plaintiff does not make
it actionable by itself.10
Declarations made about a large class of people
cannot be interpreted to advert to an identified or
identifiable individual. Absent circumstances
specifically pointing or alluding to a particular
member of a class, no member of such class has a
right of action11 without at all impairing the equally
demanding right of free speech and expression, as
well as of the press, under the Bill of Rights.12
Thus, in Newsweek, Inc. v. Intermediate Appellate
Court,13 we dismissed a complaint for libel against
Newsweek, Inc., on the ground that private
respondents failed to state a cause of action since
they made no allegation in the complaint that
anything contained in the article complained of
specifically referred to any of them. Private
respondents, incorporated associations of
sugarcane planters in Negros Occidental claiming
to have 8,500 members and several individual
members, filed a class action suit for damages in
behalf of all sugarcane planters in Negros
Occidental. The complaint filed in the Court of First
Instance of Bacolod City alleged that Newsweek,
Inc., committed libel against them by the publication
of the article "Island of Fear" in its weekly
newsmagazine allegedly depicting Negros Province
as a place dominated by wealthy landowners and
sugar planters who not only exploited the
impoverished and underpaid sugarcane workers
but also brutalized and killed them with impunity.
Private respondents alleged that the article showed
a deliberate and malicious use of falsehood,
slanted presentation and/or misrepresentation of
facts intended to put the sugarcane planters in a
bad light, expose them to public ridicule, discredit
and humiliation in the Philippines and abroad, and
make them the objects of hatred, contempt and
hostility of their agricultural workers and of the
public in general. We ratiocinated —
x x x where the defamation is alleged to have been
directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as
to apply to every individual in that group or class, or

sufficiently specific so that each individual in the
class or group can prove that the defamatory
statement specifically pointed to him, so that he can
bring the action separately, if need be x x x x The
case at bar is not a class suit. It is not a case where
one or more may sue for the benefit of all, or where
the representation of class interest affected by the
judgment or decree is indispensable to make each
member of the class an actual party. We have here
a case where each of the plaintiffs has a separate
and distinct reputation in the community. They do
not have a common or general interest in the
subject matter of the controversy.
In the present case, there was no fairly identifiable
person who was allegedly injured by the Bulgar
article. Since the persons allegedly defamed could
not be identifiable, private respondents have no
individual causes of action; hence, they cannot sue
for a class allegedly disparaged. Private
respondents must have a cause of action in
common with the class to which they belong to in
order for the case to prosper.
An individual Muslim has a reputation that is
personal, separate and distinct in the community.
Each Muslim, as part of the larger Muslim
community in the Philippines of over five (5) million
people, belongs to a different trade and profession;
each has a varying interest and a divergent political
and religious view — some may be conservative,
others liberal. A Muslim may find the article
dishonorable, even blasphemous; others may find it
as an opportunity to strengthen their faith and
educate the non-believers and the "infidels." There
is no injury to the reputation of the individual
Muslims who constitute this community that can
give rise to an action for group libel. Each
reputation is personal in character to every person.
Together, the Muslims do not have a single
common reputation that will give them a common or
general interest in the subject matter of the
controversy.
In Arcand v. The Evening Call Publishing
Company,14 the United States Court of Appeals
held that one guiding principle of group libel is that
defamation of a large group does not give rise to a
cause of action on the part of an individual unless it
can be shown that he is the target of the
defamatory matter.
The rule on libel has been restrictive. In an
American case,15 a person had allegedly
CONSTI LAW II ACJUCO 202
committed libel against all persons of the Jewish
religion. The Court held that there could be no libel
against an extensive community in common law. In
an English case, where libel consisted of
allegations of immorality in a Catholic nunnery, the
Court considered that if the libel were on the whole
Roman Catholic Church generally, then the
defendant must be absolved.16 With regard to the
largest sectors in society, including religious
groups, it may be generally concluded that no
criminal action at the behest of the state, or civil
action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all
Muslims, numbering more than 600 million, were
defamed by the airing of a national television
broadcast of a film depicting the public execution of
a Saudi Arabian princess accused of adultery, and
alleging that such film was "insulting and
defamatory" to the Islamic religion.17 The United
States District Court of the Northern District of
California concluded that the plaintiffs' prayer for
$20 Billion in damages arising from "an
international conspiracy to insult, ridicule, discredit
and abuse followers of Islam throughout the world,
Arabs and the Kingdom of Saudi Arabia" bordered
on the "frivolous," ruling that the plaintiffs had failed
to demonstrate an actionable claim for defamation.
The California Court stressed that the aim of the
law on defamation was to protect individuals; a
group may be sufficiently large that a statement
concerning it could not defame individual group
members.18
Philip Wittenberg, in his book "Dangerous Words: A
Guide to the Law of Libel,"19 discusses the
inappropriateness of any action for tortious libel
involving large groups, and provides a succinct
illustration:
There are groupings which may be finite enough so
that a description of the body is a description of the
members. Here the problem is merely one of
evaluation. Is the description of the member implicit
in the description of the body, or is there a
possibility that a description of the body may
consist of a variety of persons, those included
within the charge, and those excluded from it?
A general charge that the lawyers in the city are
shysters would obviously not be a charge that all of
the lawyers were shysters. A charge that the
lawyers in a local point in a great city, such as
Times Square in New York City, were shysters

would obviously not include all of the lawyers who
practiced in that district; but a statement that all of
the lawyers who practiced in a particular building in
that district were shysters would be a specific
charge, so that any lawyer having an office within
that building could sue.
If the group is a very large one, then the alleged
libelous statement is considered to have no
application to anyone in particular, since one might
as well defame all mankind. Not only does the
group as such have no action; the plaintiff does not
establish any personal reference to himself.20 At
present, modern societal groups are both
numerous and complex. The same principle follows
with these groups: as the size of these groups
increases, the chances for members of such
groups to recover damages on tortious libel
become elusive. This principle is said to embrace
two (2) important public policies: first, where the
group referred to is large, the courts presume that
no reasonable reader would take the statements as
so literally applying to each individual member; and
second, the limitation on liability would satisfactorily
safeguard freedom of speech and expression, as
well as of the press, effecting a sound compromise
between the conflicting fundamental interests
involved in libel cases.21
In the instant case, the Muslim community is too
vast as to readily ascertain who among the Muslims
were particularly defamed. The size of the group
renders the reference as indeterminate and generic
as a similar attack on Catholics, Protestants,
Buddhists or Mormons would do. The word
"Muslim" is descriptive of those who are believers
of Islam, a religion divided into varying sects, such
as the Sunnites, the Shiites, the Kharijites, the Sufis
and others based upon political and theological
distinctions. "Muslim" is a name which describes
only a general segment of the Philippine
population, comprising a heterogeneous body
whose construction is not so well defined as to
render it impossible for any representative
identification.
The Christian religion in the Philippines is likewise
divided into different sects: Catholic, Baptist,
Episcopalian, Presbyterian, Lutheran, and other
groups the essence of which may lie in an inspired
charlatan, whose temple may be a corner house in
the fringes of the countryside. As with the Christian
religion, so it is with other religions that represent
the nation's culturally diverse people and minister
CONSTI LAW II ACJUCO 203
to each one's spiritual needs. The Muslim
population may be divided into smaller groups with
varying agenda, from the prayerful conservative to
the passionately radical. These divisions in the
Muslim population may still be too large and
ambiguous to provide a reasonable inference to
any personality who can bring a case in an action
for libel.
The foregoing are in essence the same view
scholarly expressed by Mr. Justice Reynato S.
Puno in the course of the deliberations in this case.
We extensively reproduce hereunder his
comprehensive and penetrating discussion on
group libel —
Defamation is made up of the twin torts of libel and
slander — the one being, in general, written, while
the other in general is oral. In either form,
defamation is an invasion of the interest in
reputation and good name. This is a "relational
interest" since it involves the opinion others in the
community may have, or tend to have of the
plaintiff.
The law of defamation protects the interest in
reputation — the interest in acquiring, retaining and
enjoying one's reputation as good as one's
character and conduct warrant. The mere fact that
the plaintiff's feelings and sensibilities have been
offended is not enough to create a cause of action
for defamation. Defamation requires that something
be communicated to a third person that may affect
the opinion others may have of the plaintiff. The
unprivileged communication must be shown of a
statement that would tend to hurt plaintiff's
reputation, to impair plaintiff's standing in the
community.
Although the gist of an action for defamation is an
injury to reputation, the focus of a defamation
action is upon the allegedly defamatory statement
itself and its predictable effect upon third persons.
A statement is ordinarily considered defamatory if it
"tend[s] to expose one to public hatred, shame,
obloquy, contumely, odium, contempt, ridicule,
aversion, ostracism, degradation or disgracex x x."
The Restatement of Torts defines a defamatory
statement as one that "tends to so harm the
reputation of another as to lower him in the
estimation of the community or to deter third
persons from associating or dealing with him."

Consequently as a prerequisite to recovery, it is
necessary for the plaintiff to prove as part of his
prima facie case that the defendant (1) published a
statement that was (2) defamatory (3) of and
concerning the plaintiff.
The rule in libel is that the action must be brought
by the person against whom the defamatory charge
has been made. In the American jurisdiction, no
action lies by a third person for damages suffered
by reason of defamation of another person, even
though the plaintiff suffers some injury therefrom.
For recovery in defamation cases, it is necessary
that the publication be "of and concerning the
plaintiff." Even when a publication may be clearly
defamatory as to somebody, if the words have no
personal application to the plaintiff, they are not
actionable by him. If no one is identified, there can
be no libel because no one's reputation has been
injured x x x x
In fine, in order for one to maintain an action for an
alleged defamatory statement, it must appear that
the plaintiff is the person with reference to whom
the statement was made. This principle is of vital
importance in cases where a group or class is
defamed since, usually, the larger the collective,
the more difficult it is for an individual member to
show that he was the person at whom the
defamation was directed.
If the defamatory statements were directed at a
small, restricted group of persons, they applied to
any member of the group, and an individual
member could maintain an action for defamation.
When the defamatory language was used toward a
small group or class, including every member, it
has been held that the defamatory language
referred to each member so that each could
maintain an action. This small group or class may
be a jury, persons engaged in certain businesses,
professions or employments, a restricted
subdivision of a particular class, a society, a
football team, a family, small groups of union
officials, a board of public officers, or engineers of a
particular company.
In contrast, if defamatory words are used broadly in
respect to a large class or group of persons, and
there is nothing that points, or by proper colloquium
or innuendo can be made to apply, to a particular
member of the class or group, no member has a
right of action for libel or slander. Where the
defamatory matter had no special, personal
CONSTI LAW II ACJUCO 204
application and was so general that no individual
damages could be presumed, and where the class
referred to was so numerous that great vexation
and oppression might grow out of the multiplicity of
suits, no private action could be maintained. This
rule has been applied to defamatory publications
concerning groups or classes of persons engaged
in a particular business, profession or employment,
directed at associations or groups of association
officials, and to those directed at miscellaneous
groups or classes of persons.
Distinguishing a small group — which if defamed
entitles all its members to sue from a large group —
which if defamed entitles no one to sue — is not
always so simple. Some authorities have noted that
in cases permitting recovery, the group generally
has twenty five (25) or fewer members. However,
there is usually no articulated limit on size. Suits
have been permitted by members of fairly large
groups when some distinguishing characteristic of
the individual or group increases the likelihood that
the statement could be interpreted to apply
individually. For example, a single player on the 60
to 70 man Oklahoma University football team was
permitted to sue when a writer accused the entire
team of taking amphetamines to "hop up" its
performance; the individual was a fullback, i.e., a
significant position on the team and had played in
all but two of the team's games.
A prime consideration, therefore, is the public
perception of the size of the group and whether a
statement will be interpreted to refer to every
member. The more organized and cohesive a
group, the easier it is to tar all its members with the
same brush and the more likely a court will permit a
suit from an individual even if the group includes
more than twenty five (25) members. At some
point, however, increasing size may be seen to
dilute the harm to individuals and any resulting
injury will fall beneath the threshold for a viable
lawsuit.
x x x x There are many other groupings of men
than those that are contained within the foregoing
group classifications. There are all the religions of
the world, there are all the political and ideological
beliefs; there are the many colors of the human
race. Group defamation has been a fertile and
dangerous weapon of attack on various racial,
religious and political minorities. Some states,
therefore, have passed statutes to prevent
concerted efforts to harass minority groups in the

United States by making it a crime to circulate
insidious rumors against racial and religious
groups. Thus far, any civil remedy for such
broadside defamation has been lacking.
There have been numerous attempts by individual
members to seek redress in the courts for libel on
these groups, but very few have succeeded
because it felt that the groups are too large and
poorly defined to support a finding that the plaintiff
was singled out for personal attack x x x x (citations
omitted).
Our conclusion therefore is that the statements
published by petitioners in the instant case did not
specifically identify nor refer to any particular
individuals who were purportedly the subject of the
alleged libelous publication. Respondents can
scarcely claim to having been singled out for social
censure pointedly resulting in damages.
A contrary view is expressed that what is involved
in the present case is an intentional tortious act
causing mental distress and not an action for libel.
That opinion invokes Chaplinsky v. New
Hampshire22 where the U.S. Supreme Court held
that words heaping extreme profanity, intended
merely to incite hostility, hatred or violence, have
no social value and do not enjoy constitutional
protection; and Beauharnais v. Illinois23 where it
was also ruled that hate speech which denigrates a
group of persons identified by their religion, race or
ethnic origin defames that group and the law may
validly prohibit such speech on the same ground as
defamation of an individual.
We do not agree to the contrary view articulated in
the immediately preceding paragraph. Primarily, an
"emotional distress" tort action is personal in
nature, i.e., it is a civil action filed by an individual24
to assuage the injuries to his emotional tranquility
due to personal attacks on his character. It has no
application in the instant case since no particular
individual was identified in the disputed article of
Bulgar. Also, the purported damage caused by the
article, assuming there was any, falls under the
principle of relational harm — which includes harm
to social relationships in the community in the form
of defamation; as distinguished from the principle of
reactive harm — which includes injuries to
individual emotional tranquility in the form of an
infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to
the standing of Muslims in the community,
CONSTI LAW II ACJUCO 205
especially to their activities in propagating their faith
in Metro Manila and in other non-Muslim
communities in the country.25 It is thus beyond
cavil that the present case falls within the
application of the relational harm principle of tort
actions for defamation, rather than the reactive
harm principle on which the concept of emotional
distress properly belongs.
Moreover, under the Second Restatement of the
Law, to recover for the intentional infliction of
emotional distress the plaintiff must show that: (a)
The conduct of the defendant was intentional or in
reckless disregard of the plaintiff; (b) The conduct
was extreme and outrageous; (c) There was a
causal connection between the defendant's
conduct and the plaintiff's mental distress; and, (d)
The plaintiff's mental distress was extreme and
severe.26
"Extreme and outrageous conduct" means conduct
that is so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and
utterly intolerable in civilized society. The
defendant's actions must have been so terrifying as
naturally to humiliate, embarrass or frighten the
plaintiff.27 Generally, conduct will be found to be
actionable where the recitation of the facts to an
average member of the community would arouse
his resentment against the actor, and lead him or
her to exclaim, "Outrageous!" as his or her
reaction.28
"Emotional distress" means any highly unpleasant
mental reaction such as extreme grief, shame,
humiliation, embarrassment, anger,
disappointment, worry, nausea, mental suffering
and anguish, shock, fright, horror, and chagrin.29
"Severe emotional distress," in some jurisdictions,
refers to any type of severe and disabling emotional
or mental condition which may be generally
recognized and diagnosed by professionals trained
to do so, including posttraumatic stress disorder,
neurosis, psychosis, chronic depression, or
phobia.30 The plaintiff is required to show, among
other things, that he or she has suffered emotional
distress so severe that no reasonable person could
be expected to endure it; severity of the distress is
an element of the cause of action, not simply a
matter of damages.31
Any party seeking recovery for mental anguish
must prove more than mere worry, anxiety,

vexation, embarrassment, or anger. Liability does
not arise from mere insults, indignities, threats,
annoyances, petty expressions, or other trivialities.
In determining whether the tort of outrage had been
committed, a plaintiff is necessarily expected and
required to be hardened to a certain amount of
criticism, rough language, and to occasional acts
and words that are definitely inconsiderate and
unkind; the mere fact that the actor knows that the
other will regard the conduct as insulting, or will
have his feelings hurt, is not enough.32
Hustler Magazine v. Falwell33 illustrates the test
case of a civil action for damages on intentional
infliction of emotional distress. A parody appeared
in Hustler magazine featuring the American
fundamentalist preacher and evangelist Reverend
Jerry Falwell depicting him in an inebriated state
having an incestuous, sexual liaison with his
mother in an outhouse. Falwell sued Hustler and its
publisher Larry Flynt for damages. The United
States District Court for the Western District of
Virginia ruled that the parody was not libelous,
because no reasonable reader would have
understood it as a factual assertion that Falwell
engaged in the act described. The jury, however,
awarded $200,000 in damages on a separate count
of "intentional infliction of emotional distress," a
cause of action that did not require a false
statement of fact to be made. The United States
Supreme Court in a unanimous decision overturned
the jury verdict of the Virginia Court and held that
Reverend Falwell may not recover for intentional
infliction of emotional distress. It was argued that
the material might be deemed outrageous and may
have been intended to cause severe emotional
distress, but these circumstances were not
sufficient to overcome the free speech rights
guaranteed under the First Amendment of the
United States Constitution. Simply stated, an
intentional tort causing emotional distress must
necessarily give way to the fundamental right to
free speech.
It must be observed that although Falwell was
regarded by the U.S. High Court as a "public
figure," he was an individual particularly singled out
or identified in the parody appearing on Hustler
magazine. Also, the emotional distress allegedly
suffered by Reverend Falwell involved a reactive
interest — an emotional response to the parody
which supposedly injured his psychological well-
being.
CONSTI LAW II ACJUCO 206
Verily, our position is clear that the conduct of
petitioners was not extreme or outrageous. Neither
was the emotional distress allegedly suffered by
respondents so severe that no reasonable person
could be expected to endure it. There is no
evidence on record that points to that result.
Professor William Prosser, views tort actions on
intentional infliction of emotional distress in this
manner34 —
There is virtually unanimous agreement that such
ordinary defendants are not liable for mere insult,
indignity, annoyance, or even threats, where the
case is lacking in other circumstances of
aggravation. The reasons are not far to seek. Our
manners, and with them our law, have not yet
progressed to the point where we are able to afford
a remedy in the form of tort damages for all
intended mental disturbance. Liability of course
cannot be extended to every trivial indignity x x x x
The plaintiff must necessarily be expected and
required to be hardened to a certain amount of
rough language, and to acts that are definitely
inconsiderate and unkind x x x The plaintiff cannot
recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with
this succinct observation, viz:35
There is no occasion for the law to intervene in
every case where someone's feelings are hurt.
There must still be freedom to express an
unflattering opinion, and some safety valve must be
left through which irascible tempers may blow off
relatively harmless steam.
Thus, it is evident that even American courts are
reluctant to adopt a rule of recovery for emotional
harm that would "open up a wide vista of litigation
in the field of bad manners," an area in which a
"toughening of the mental hide" was thought to be a
more appropriate remedy.36 Perhaps of greater
concern were the questions of causation, proof,
and the ability to accurately assess damages for
emotional harm, each of which continues to
concern courts today.37
In this connection, the doctrines in Chaplinsky and
Beauharnais had largely been superseded by
subsequent First Amendment doctrines. Back in
simpler times in the history of free expression the
Supreme Court appeared to espouse a theory,
known as the Two-Class Theory, that treated

certain types of expression as taboo forms of
speech, beneath the dignity of the First
Amendment. The most celebrated statement of this
view was expressed in Chaplinsky:
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, the profane, the libelous, and the insulting
or "fighting" words — those which by their very
utterance inflict injury or tend to incite an immediate
breach of the peace. It has been well observed that
such utterances are no essential part of any
exposition of ideas, and are of such slight social
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.
Today, however, the theory is no longer viable;
modern First Amendment principles have passed it
by. American courts no longer accept the view that
speech may be proscribed merely because it is
"lewd," "profane," "insulting" or otherwise vulgar or
offensive.38 Cohen v. California39 is illustrative:
Paul Robert Cohen wore a jacket bearing the words
"Fuck the Draft" in a Los Angeles courthouse in
April 1968, which caused his eventual arrest.
Cohen was convicted for violating a California
statute prohibiting any person from "disturb[ing] the
peace x x x by offensive conduct." The U.S.
Supreme Court conceded that Cohen's expletive
contained in his jacket was "vulgar," but it
concluded that his speech was nonetheless
protected by the right to free speech. It was neither
considered an "incitement" to illegal action nor
"obscenity." It did not constitute insulting or
"fighting" words for it had not been directed at a
person who was likely to retaliate or at someone
who could not avoid the message. In other words,
no one was present in the Los Angeles courthouse
who would have regarded Cohen's speech as a
direct personal insult, nor was there any danger of
reactive violence against him.
No specific individual was targeted in the allegedly
defamatory words printed on Cohen's jacket. The
conviction could only be justified by California's
desire to exercise the broad power in preserving
the cleanliness of discourse in the public sphere,
which the U.S. Supreme Court refused to grant to
the State, holding that no objective distinctions can
be made between vulgar and nonvulgar speech,
and that the emotive elements of speech are just as
CONSTI LAW II ACJUCO 207
essential in the exercise of this right as the purely
cognitive. As Mr. Justice Harlan so eloquently
wrote: "[O]ne man's vulgarity is another man's lyric
x x x words are often chosen as much for their
emotive as their cognitive force."40 With Cohen,
the U.S. Supreme Court finally laid the
Constitutional foundation for judicial protection of
provocative and potentially offensive speech.
Similarly, libelous speech is no longer outside the
First Amendment protection. Only one small piece
of the Two-Class Theory in Chaplinsky survives —
U.S. courts continue to treat "obscene" speech as
not within the protection of the First Amendment at
all. With respect to the "fighting words" doctrine,
while it remains alive it was modified by the current
rigorous clear and present danger test.41 Thus, in
Cohen the U.S. Supreme Court in applying the test
held that there was no showing that Cohen's jacket
bearing the words "Fuck the Draft" had threatened
to provoke imminent violence; and that protecting
the sensibilities of onlookers was not sufficiently
compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky
doctrine, suffered the same fate as Chaplinsky.
Indeed, when Beauharnais was decided in 1952,
the Two-Class Theory was still flourishing. While
concededly the U.S. High Tribunal did not formally
abandon Beauharnais, the seminal shifts in U.S.
constitutional jurisprudence substantially undercut
Beauharnais and seriously undermined what is left
of its vitality as a precedent. Among the cases that
dealt a crushing impact on Beauharnais and
rendered it almost certainly a dead letter case law
are Brandenburg v. Ohio,42 and, again, Cohen v.
California.43 These decisions recognize a much
narrower set of permissible grounds for restricting
speech than did Beauharnais.44
In Brandenburg, appellant who was a leader of the
Ku Klux Klan was convicted under the Ohio
Criminal Syndicalism Statute for advocating the
necessity, duty and propriety of crime, sabotage,
violence, or unlawful methods of terrorism as a
means of accomplishing industrial or political
reforms; and for voluntarily assembling with a group
formed to teach or advocate the doctrines of
criminal syndicalism. Appellant challenged the
statute and was sustained by the U.S. Supreme
Court, holding that the advocacy of illegal action
becomes punishable only if such advocacy is
directed to inciting or producing imminent lawless
action and is likely to incite or produce such

action.45 Except in unusual instances,
Brandenburg protects the advocacy of lawlessness
as long as such speech is not translated into action.
The importance of the Brandenburg ruling cannot
be overemphasized. Prof. Smolla affirmed that
"Brandenburg must be understood as overruling
Beauharnais and eliminating the possibility of
treating group libel under the same First
Amendment standards as individual libel."46 It may
well be considered as one of the lynchpins of the
modern doctrine of free speech, which seeks to
give special protection to politically relevant
speech.
In any case, respondents' lack of cause of action
cannot be cured by the filing of a class suit. As
correctly pointed out by Mr. Justice Jose C. Vitug
during the deliberations, "an element of a class suit
is the adequacy of representation. In determining
the question of fair and adequate representation of
members of a class, the court must consider (a)
whether the interest of the named party is
coextensive with the interest of the other members
of the class; (b) the proportion of those made
parties as it so bears to the total membership of the
class; and, (c) any other factor bearing on the
ability of the named party to speak for the rest of
the class.47
The rules require that courts must make sure that
the persons intervening should be sufficiently
numerous to fully protect the interests of all
concerned. In the present controversy, Islamic
Da'wah Council of the Philippines, Inc., seeks in
effect to assert the interests not only of the Muslims
in the Philippines but of the whole Muslim world as
well. Private respondents obviously lack the
sufficiency of numbers to represent such a global
group; neither have they been able to demonstrate
the identity of their interests with those they seek to
represent. Unless it can be shown that there can be
a safe guaranty that those absent will be
adequately represented by those present, a class
suit, given its magnitude in this instance, would be
unavailing."48
Likewise on the matter of damages, we agree that
"moral damages may be recovered only if the
plaintiff is able to satisfactorily prove the existence
of the factual basis for the damages and its causal
connection with the acts complained of,49 and so it
must be, as moral damages although incapable of
pecuniary estimation are designed not to impose a
CONSTI LAW II ACJUCO 208
penalty but to compensate for injury sustained and
actual damages suffered.50 Exemplary damages,
on the other hand, may only be awarded if claimant
is able to establish his right to moral, temperate,
liquidated or compensatory damages.51
Unfortunately, neither of the requirements to
sustain an award for either of these damages would
appear to have been adequately established by
respondents."
In a pluralistic society like the Philippines where
misinformation about another individual's religion is
as commonplace as self-appointed critics of
government, it would be more appropriate to
respect the fair criticism of religious principles,
including those which may be outrageously
appalling, immensely erroneous, or those couched
as fairly informative comments. The greater danger
in our society is the possibility that it may
encourage the frequency of suits among religious
fundamentalists, whether Christian, Muslim, Hindu,
Buddhist, Jewish, or others. This would
unnecessarily make the civil courts a battleground
to assert their spiritual ideas, and advance their
respective religious agenda.
It need not be stressed that this Court has no
power to determine which is proper religious
conduct or belief; neither does it have the authority
to rule on the merits of one religion over another,
nor declare which belief to uphold or cast asunder,
for the validity of religious beliefs or values are
outside the sphere of the judiciary. Such matters
are better left for the religious authorities to address
what is rightfully within their doctrine and realm of
influence. Courts must be viewpoint-neutral when it
comes to religious matters if only to affirm the
neutrality principle of free speech rights under
modern jurisprudence where "[a]ll ideas are treated
equal in the eyes of the First Amendment — even
those ideas that are universally condemned and
run counter to constitutional principles."52 Under
the right to free speech, "there is no such thing as a
false idea. However pernicious an opinion may
seem, we depend for its correction not on the
conscience of judges and juries but on the
competition of other ideas."53 Denying certiorari
and affirming the appellate court decision would
surely create a chilling effect on the constitutional
guarantees of freedom of speech, of expression,
and of the press.
WHEREFORE, the petition is GRANTED. The
assailed Decision of the Court of Appeals dated 27
 CONSTI LAW II ACJUCO 209

August 1998 is REVERSED and SET ASIDE, and APPEAL FROM THE APPELLATE DEPARTMENT,
the Decision of the RTC-Br. 4, Manila, dismissing SUPERIOR COURT
the complaint for lack of merit, is REINSTATED and
AFFIRMED. No pronouncement as to costs. OF CALIFORNIA, COUNTY OF ORANGE

SO ORDERED. 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.
MILLER V. CALIFORNIA, 413 U.S. 15 (1973)
3. The test of "utterly without redeeming social
Argued January 18-19, 1972 value" articulated in Memoirs, supra, is rejected as
a constitutional standard. Pp. 413 U. S. 24-25.
Reargued November 7, 1972
4. The jury may measure the essentially factual
Decided June 21, 1973 issues of prurient appeal and patent offensiveness
by the standard that prevails in the forum
413 U.S. 15 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] and the
Appellate Department, Superior Court of California,
County of Orange, summarily affirmed the
judgment without opinion. Appellant's conviction
was specifically 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 of opinion -- have the full protection of the [First
This case involves the application of a State's
criminal obscenity statute to a situation in which
CONSTI LAW II ACJUCO 210
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
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 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
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
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."
CONSTI LAW II ACJUCO 211
Id. at 383 U. S. 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly
without redeeming social importance," Memoirs
required 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 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 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; 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).
CONSTI LAW II ACJUCO 212
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 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 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 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 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. . . ."
CONSTI LAW II ACJUCO 213
"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 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 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
CONSTI LAW II ACJUCO 214
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
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] 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
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 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 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
CONSTI LAW II ACJUCO 215
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 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.
 CONSTI LAW II ACJUCO 216

THE COURT OF APPEALS, RAMON

BAGATSING, and NARCISO CABRERA,
respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private

respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's

magazine", seeks the review of the decision of the
Court of Appeals, 1 rejecting his appeal from the
decision of the Regional Trial Court, dismissing his
complaint for injunctive relief. He invokes, in
particular, the guaranty against unreasonable
searches and seizures of the Constitution, as well
as its prohibition against deprivation of property
without due process of law. There is no controversy
as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-

Smut Campaign initiated by the Mayor of the City of
Manila, Ramon D. Bagatsing, elements of the
Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the
Metropolitan Police Force of Manila, seized and
confiscated from dealers, distributors, newsstand
owners and peddlers along Manila sidewalks,
magazines, publications and other reading
materials believed to be obscene, pornographic
and indecent and later burned the seized materials
in public at the University belt along C.M. Recto
Avenue, Manila, in the presence of Mayor
Bagatsing and several officers and members of
various student organizations.

Among the publications seized, and later burned,

was "Pinoy Playboy" magazines published and co-
edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for

injunction with prayer for issuance of the writ of
preliminary injunction against Mayor Bagatsing and
Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to
enjoin and/or restrain said defendants and their
G.R. No. 80806 October 5, 1989 agents from confiscating plaintiffs magazines or
from otherwise preventing the sale or circulation
LEO PITA doing business under the name and thereof claiming that the magazine is a decent,
style of PINOY PLAYBOY, petitioner, artistic and educational magazine which is not per
vs. se obscene, and that the publication is protected by

the Constitutional guarantees of freedom of speech
and of the press.
By order dated December 8, 1 983 the Court set
the hearing on the petition for preliminary injunction
on December 14,1983 and ordered the defendants
to show cause not later than December 13, 1983
why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent
Motion for issuance of a temporary restraining
order. against indiscriminate seizure, confiscation
and burning of plaintiff's "Pinoy Playboy"
Magazines, pending hearing on the petition for
preliminary injunction in view of Mayor Bagatsing's
pronouncement to continue the Anti-Smut
Campaign. The Court granted the temporary
restraining order on December 14, 1983.
In his Answer and Opposition filed on December
27,1983 defendant Mayor Bagatsing admitted the
confiscation and burning of obscence reading
materials on December 1 and 3, 1983, but claimed
that the said materials were voluntarily surrendered
by the vendors to the police authorities, and that
the said confiscation and seizure was (sic)
undertaken pursuant to P.D. No. 960, as amended
by P.D. No. 969, which amended Article 201 of the
Revised Penal Code. In opposing the plaintiffs
application for a writ of preliminary injunction,
defendant pointed out that in that anti- smut
campaign conducted on December 1 and 3, 1983,
the materials confiscated belonged to the magazine
stand owners and peddlers who voluntarily
surrendered their reading materials, and that the
plaintiffs establishment was not raided.
The other defendant, WPD Superintendent,
Narcisco Cabrera, filed no answer.
On January 5,1984, plaintiff filed his Memorandum
in support of the issuance of the writ of preliminary
injunction, raising the issue as to "whether or not
the defendants and/or their agents can without a
court order confiscate or seize plaintiffs magazine
before any judicial finding is made on whether said
magazine is obscene or not".
The restraining order issued on December 14,1983
having lapsed on January 3,1984, the plaintiff filed
an urgent motion for issuance of another restraining
order, which was opposed by defendant on the
ground that issuance of a second restraining order
would violate the Resolution of the Supreme Court
CONSTI LAW II ACJUCO 217
dated January 11, 1983, providing for the Interim
Rules Relative to the Implementation of Batas
Pambansa Blg. 129, which provides that a
temporary restraining order shall be effective only
for twenty days from date of its issuance.
On January 9, 1984 defendant filed his Comment
and/or Rejoinder Memorandum in support of his
opposition to the issuance of a writ of preliminary
injunction.
On January 11, 1984, the trial court issued an
Order setting the case for hearing on January 16,
1984 "for the parties to adduce evidence on the
question of whether the publication 'Pinoy Playboy
Magazine alleged (sic) seized, confiscated and/or
burned by the defendants, are obscence per se or
not".
On January 16, 1984, the Court issued an order
granting plaintiffs motion to be given three days "to
file a reply to defendants' opposition dated January
9, 1984, serving a copy thereof to the counsel for
the defendants, who may file a rejoinder within the
same period from receipt, after which the issue of
Preliminary Injunction shall be resolved".
Plaintiff's supplemental Memorandum was filed on
January 18, 1984. Defendant filed his Comment on
plaintiff s supplemental Memorandum on January
20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on January
25, 1984.
On February 3, 1984, the trial court promulgated
the Order appealed from denying the motion for a
writ of preliminary injunction, and dismissing the
case for lack of merit. 2
The Appellate Court dismissed the appeal upon the
grounds, among other things, as follows:
We cannot quarrel with the basic postulate
suggested by appellant that seizure of allegedly
obscene publications or materials deserves close
scrutiny because of the constitutional guarantee
protecting the right to express oneself in print (Sec.
9, Art. IV), and the protection afforded by the
constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally
conceded, however, that freedom of the press is
not without restraint as the state has the right to
protect society from pornographic literature that is
offensive to public morals, as indeed we have laws

punishing the author, publishers and sellers of
obscene publications (Sec. I , Art. 201, Revised
Penal Code, as amended by P.D. No. 960 and P.D.
No. 969). Also well settled is the rule that the right
against unreasonable searches and seizures
recognizes certain exceptions, as when there is
consent to the search or seizure, (People vs.
Malesugui 63 Phil. 22) or search is an incident to
an arrest, (People vs. Veloso, 48 Phil. 169; Alvero
vs. Dizon, 76 Phil. 637) or is conducted in a vehicle
or movable structure (See Papa vs. Magno, 22
SCRA 857).3
The petitioner now ascribes to the respondent court
the following errors:
1. The Court of Appeals erred in affirming the
decision of the trial court and, in effect, holding that
the police officers could without any court warrant
or order seize and confiscate petitioner's
magazines on the basis simply of their
determination that they are obscene.
2. The Court of Appeals erred in affirming the
decision of the trial court and, in effect, holding that
the trial court could dismiss the case on its merits
without any hearing thereon when what was
submitted to it for resolution was merely the
application of petitioner for the writ of preliminary
injunction.4
The Court states at the outset that it is not the first
time that it is being asked to pronounce what
"obscene" means or what makes for an obscene or
pornographic literature. Early on, in People vs.
Kottinger,5 the Court laid down the test, in
determining the existence of obscenity, as follows:
"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." 6 "Another test," so
Kottinger further declares, "is that which shocks the
ordinary and common sense of men as an
indecency. " 7 Kottinger hastened to say, however,
that "[w]hether a picture is obscene or indecent
must depend upon the circumstances of the case, 8
and that ultimately, the question is to be decided by
the "judgment of the aggregate sense of the
community reached by it." 9
Yet Kottinger, in its effort to arrive at a "conclusive"
definition, succeeded merely in generalizing a
problem that has grown increasingly complex over
CONSTI LAW II ACJUCO 218
the years. Precisely, the question is: When does a
publication have a corrupting tendency, or when
can it be said to be offensive to human
sensibilities? And obviously, it is to beg the
question to say that a piece of literature has a
corrupting influence because it is obscene, and
vice-versa.
Apparently, Kottinger was aware of its own
uncertainty because in the same breath, it would
leave the final say to a hypothetical "community
standard" — whatever that is — and that the
question must supposedly be judged from case to
case.
About three decades later, this Court promulgated
People v. Go Pin, 10 a prosecution under Article
201 of the Revised Penal Code. Go Pin, was also
even hazier:
...We agree with counsel for appellant in part. If
such pictures, sculptures and paintings are shown
in art exhibit 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 for 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.11
xxx xxx xxx
As the Court declared, the issue is a complicated
one, in which the fine lines have neither been
drawn nor divided. It is easier said than done to
say, indeed, that if "the pictures here in question
were used not exactly for art's sake but rather for
commercial purposes," 12 the pictures are not
entitled to any constitutional protection.

It was People v. Padan y Alova ,13 however, that
introduced to Philippine jurisprudence the
"redeeming" element that should accompany the
work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like
the exhibition of still or moving pictures of women in
the nude, which we have condemned for obscenity
and as offensive to morals. In those cases, one
might yet claim that there was involved the element
of art; that connoisseurs of the same, and painters
and sculptors might find inspiration in the showing
of pictures in the nude, or the human body
exhibited in sheer nakedness, as models in
tableaux vivants. But an 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. ...14
Padan y Alova, like Go Pin, however, raised more
questions than answers. For one thing, if the
exhibition was attended by "artists and persons
interested in art and who generally go to art
exhibitions and galleries to satisfy and improve their
artistic tastes,"15 could the same legitimately lay
claim to "art"? For another, suppose that the
exhibition was so presented that "connoisseurs of
[art], and painters and sculptors might find
inspiration,"16 in it, would it cease to be a case of
obscenity?
Padan y Alova, like Go Pin also leaves too much
latitude for judicial arbitrament, which has permitted
an ad lib of Ideas and "two-cents worths" among
judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw
Katigbak,17 the Court, following trends in the
United States, adopted the test: "Whether to the
average person, applying contemporary standards,
the dominant theme of the material taken as a
whole appeals to prurient interest."18 Kalaw-
Katigbak represented a marked departure from
Kottinger in the sense that it measured obscenity in
terms of the "dominant theme" of the work, rather
than isolated passages, which were central to
Kottinger (although both cases are agreed that
"contemporary community standards" are the final
CONSTI LAW II ACJUCO 219
arbiters of what is "obscene"). Kalaw-Katigbak
undertook moreover to make the determination of
obscenity essentially a judicial question and as a
consequence, to temper the wide discretion
Kottinger had given unto law enforcers.
It is significant that in the United States,
constitutional law on obscenity continues to journey
from development to development, which, states
one authoritative commentator (with ample
sarcasm), has been as "unstable as it is
unintelligible."19
Memoirs v. Massachusettes,20 a 1966 decision,
which characterized obscenity as one "utterly
without any redeeming social value,"21 marked yet
another development.
The latest word, however, is Miller v. California,22
which expressly abandoned Massachusettes, and
established "basic guidelines,"23 to wit: "(a)
whether '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."24
(A year later, the American Supreme Court decided
Hamling v. United States 25 which repeated Miller,
and Jenkins v. Georgia, 26 yet another reiteration
of Miller. Jenkins, curiously, acquitted the
producers of the motion picture, Carnal Knowledge,
in the absence of "genitals" portrayed on screen,
although the film highlighted contemporary
American sexuality.)
The lack of uniformity in American jurisprudence as
to what constitutes "obscenity" has been attributed
to the reluctance of the courts to recognize the
constitutional dimension of the problem .27
Apparently, the courts have assumed that
"obscenity" is not included in the guaranty of free
speech, an assumption that, as we averred, has
allowed a climate of opinions among magistrates
predicated upon arbitrary, if vague theories of what
is acceptable to society. And "[t]here is little
likelihood," says Tribe, "that this development has
reached a state of rest, or that it will ever do so until
the Court recognizes that obscene speech is
speech nonetheless, although it is subject — as in
all speech — to regulation in the interests of

[society as a whole] — but not in the interest of a
uniform vision of how human sexuality should be
regarded and portrayed."28
In the case at bar, there is no challenge on the right
of the State, in the legitimate exercise of police
power, to suppress smut provided it is smut. For
obvious reasons, smut is not smut simply because
one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance
of civilization. What shocked our forebears, say,
five decades ago, is not necessarily repulsive to the
present generation. James Joyce and D.H.
Lawrence were censored in the thirties yet their
works are considered important literature today.29
Goya's La Maja desnuda was once banned from
public exhibition but now adorns the world's most
prestigious museums.
But neither should we say that "obscenity" is a bare
(no pun intended) matter of opinion. As we said
earlier, it is the divergent perceptions of men and
women that have probably compounded the
problem rather than resolved it.
What the Court is impressing, plainly and simply, is
that the question is not, and has not been, an easy
one to answer, as it is far from being a settled
matter. We share Tribe's disappointment over the
discouraging trend in American decisional law on
obscenity as well as his pessimism on whether or
not an "acceptable" solution is in sight.
In the final analysis perhaps, the task that confronts
us is less heroic than rushing to a "perfect"
definition of "obscenity", if that is possible, as
evolving standards for proper police conduct faced
with the problem, which, after all, is the plaint
specifically raised in the petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes
within the ambit of free expression, although not its
protection. In free expression cases, this Court has
consistently been on the side of the exercise of the
right, barring a "clear and present danger" that
would warrant State interference and action.30 But,
so we asserted in Reyes v. Bagatsing,31 "the
burden to show the existence of grave and
imminent danger that would justify adverse
action ... lies on the. . . authorit[ies]."32
CONSTI LAW II ACJUCO 220
"There must be objective and convincing, not
subjective or conjectural, proof of the existence of
such clear and present danger."33 "It is essential
for the validity of ... previous restraint or censorship
that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or
safety may require."34
"To justify such a limitation, there must be proof of
such weight and sufficiency to satisfy the clear and
present danger test."35
The above disposition must not, however, be taken
as a neat effort to arrive at a solution-so only we
may arrive at one-but rather as a serious attempt to
put the question in its proper perspective, that is, as
a genuine constitutional issue.
It is also significant that in his petition, the petitioner
asserts constitutional issues, mainly, due process
and illegal search and seizure.
As we so strongly stressed in Bagatsing, a case
involving the delivery of a political speech, the
presumption is that the speech may validly be said.
The burden is on the State to demonstrate the
existence of a danger, a danger that must not only
be: (1) clear but also, (2) present, to justify State
action to stop the speech. Meanwhile, the
Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that
(absence of evidence of a clear and present
danger), it must come to terms with, and be held
accountable for, due process.
The Court is not convinced that the private
respondents have shown the required proof to
justify a ban and to warrant confiscation of the
literature for which mandatory injunction had been
sought below. First of all, they were not possessed
of a lawful court order: (1) finding the said materials
to be pornography, and (2) authorizing them to
carry out a search and seizure, by way of a search
warrant.
The Court of Appeals has no "quarrel that ...
freedom of the press is not without restraint, as the
state has the right to protect society from
pornographic literature that is offensive to public
morals."36 Neither do we. But it brings us back to
square one: were the "literature" so confiscated
"pornographic"? That we have laws punishing the
author, publisher and sellers of obscence
publications (Sec. 1, Art. 201, Revised Penal Code,

as amended by P.D. No. 960 and P.D. No. 969),"37
is also fine, but the question, again, is: Has the
petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act
was sanctioned by "police power" is no license to
seize property in disregard of due process. In
Philippine Service Exporters, Inc. v. Drilon,38 We
defined police power as "state authority to enact
legislation that may interfere with personal liberty or
property in order to promote the general
welfare ."39 Presidential Decrees Nos. 960 and
969 are, arguably, police power measures, but they
are not, by themselves, authorities for high-handed
acts. They do not exempt our law enforcers, in
carrying out the decree of the twin presidential
issuances (Mr. Marcos'), from the commandments
of the Constitution, the right to due process of law
and the right against unreasonable searches and
seizures, specifically. Significantly, the Decrees
themselves lay down procedures for
implementation. We quote:
Sec. 2. Disposition of the Prohibited Articles. — The
disposition of the literature, films, prints,
engravings, sculptures, paintings, or other materials
involved in the violation referred to in Section 1
hereof (Art. 201), RPC as amended) shall be
governed by the following rules:
(a) Upon conviction of the offender, to be
forfeited in favor of the Government to be
destroyed.
(b) Where the criminal case against any violator
of this decree results in an acquittal, the
obscene/immoral literature, films, prints,
engravings, sculptures, paintings or other materials
and articles involved in the violation referred to in
Section 1 (referring to Art. 201) hereof shall
nevertheless be forfeited in favor of the government
to be destroyed, after forfeiture proceedings
conducted by the Chief of Constabulary.
(c) The person aggrieved by the forfeiture
action of the Chief of Constabulary may, within
fifteen (15) days after his receipt of a copy of the
decision, appeal the matter to the Secretary of
National Defense for review. The decision of the
Secretary of National Defense shall be final and
unappealable. (Sec. 2, PD No, 960 as amended by
PD No. 969.)
CONSTI LAW II ACJUCO 221
Sec. 4. Additional Penalties. — Additional penalties
shall be imposed as follows:
1. In case the offender is a government official
or employee who allows the violations of Section I
hereof, the penalty as provided herein shall be
imposed in the maximum period and, in addition,
the accessory penalties provided for in the Revised
Penal Code, as amended, shall likewise be
imposed .40
Under the Constitution, on the other hand:
SEC. 3. The right of the people to be secure
in their persons, houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be
determined by the judge, or such other responsible
officer as may be authorized by law, after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched, and the persons or things to be seized.
It is basic that searches and seizures may be done
only through a judicial warrant, otherwise, they
become unreasonable and subject to challenge. In
Burgos v. Chief of Staff, AFP, 43 We counter-
minded the orders of the Regional Trial Court
authorizing the search of the premises of We
Forum and Metropolitan Mail, two Metro Manila
dailies, by reason of a defective warrant. We have
greater reason here to reprobate the questioned
raid, in the complete absence of a warrant, valid or
invalid. The fact that the instant case involves an
obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated,
speech is speech, whether political or "obscene".
The Court is not ruling out warrantless searches, as
the Rules of Court (1964 rev.) (the Rules then
prevailing), provide:
SEC. 12. Search without warrant of personarrested.
— A person charged with an offense may be
searched for dangerous weapons or anything which
may be used as proof of the commission of the
offense.44
but as the provision itself suggests, the search
must have been an incident to a lawful arrest, and
the arrest must be on account of a crime
 CONSTI LAW II ACJUCO 222

committed. Here, no party has been charged, nor WHEREFORE, the petition is GRANTED. The
are such charges being readied against any party, decision of the respondent court is REVERSED
under Article 201, as amended, of the Revised and SET ASIDE. It appearing, however, that the
Penal Code. magazines subject of the search and seizure ave
been destroyed, the Court declines to grant
We reject outright the argument that "[t]here is no affirmative relief. To that extent, the case is moot
constitutional nor legal provision which would free and academic.
the accused of all criminal responsibility because
there had been no warrant," 45 and that "violation SO ORDERED.
of penal law [must] be punished." 46 For starters,
there is no "accused" here to speak of, who ought
to be "punished". Second, to say that the
respondent Mayor could have validly ordered the
raid (as a result of an anti-smut campaign) without
a lawful search warrant because, in his opinion,
"violation of penal laws" has been committed, is to
make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is
the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance

of a search warrant from a judge, if in their opinion,
an obscenity rap is in order;

2. The authorities must convince the court that

the materials sought to be seized are "obscene",
and pose a clear and present danger of an evil
substantive enough to warrant State interference
and action;

3. The judge must determine whether or not

the same are indeed "obscene:" the question is to
be resolved on a case-to-case basis and on His
Honor's sound discretion.

4. If, in the opinion of the court, probable

cause exists, it may issue the search warrant
prayed for;

5. The proper suit is then brought in the court

under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The

appellate court may assess whether or not the
properties seized are indeed "obscene".

These do not foreclose, however, defenses under

the Constitution or applicable statutes, or remedies
against abuse of official power under the Civil
Code" 47 or the Revised Penal code .48
 CONSTI LAW II ACJUCO 223

NEW YORK V. FERBER, 458 U.S. 747 (1982)

Argued April 27, 1982

Decided July 2, 1982

458 U.S. 747

CERTIORARI TO THE COURT OF APPEALS OF

NEW YORK

Syllabus

A New York statute prohibits persons from

knowingly promoting a sexual performance by a
child under the age of 16 by distributing material
which depicts such a performance. The statute
defines "sexual performance" as any performance
that includes sexual conduct by such a child, and
"sexual conduct" is in turn defined as actual or
simulated sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation, sado-
masochistic abuse, or lewd exhibition of the
genitals. Respondent bookstore proprietor was
convicted under the statute for selling films
depicting young boys masturbating, and the
Appellate Division of the New York Supreme Court
affirmed. The New York Court of Appeals reversed,
holding that the statute violated the First
Amendment as being both under inclusive and
overbroad. The court reasoned that, in light of the
explicit inclusion of an obscenity standard in a
companion statute banning the knowing
dissemination of similarly defined material, the
statute in question could not be construed to
include an obscenity standard, and therefore would
prohibit the promotion of materials traditionally
entitled to protection under the First Amendment.

Held: As applied to respondent and others who

distribute similar material, the statute in question
does not violate the First Amendment as applied to
the States through the Fourteenth Amendment. Pp.
458 U. S. 753-774.

(a) The States are entitled to greater leeway in the

regulation of pornographic depictions of children for
the following reasons: (1) the legislative judgment
that the use of children as subjects of pornographic
materials is harmful to the physiological, emotional,

and mental health of the child easily passes muster
under the First Amendment; (2) the standard of
Miller v. California, 413 U. S. 15, for determining
what is legally obscene is not a satisfactory solution
to the child pornography problem; (3) the
advertising and selling of child pornography provide
an economic motive for, and are thus an integral
part of, the production of such materials, an activity
illegal throughout the Nation; (4) the value of
permitting live performances and photographic
reproductions of children engaged in lewd
exhibitions is exceedingly modest, if not de minimis;
and (5) recognizing and classifying child
pornography as a category of material outside the
First Amendment's protection is not incompatible
with this Court's decisions dealing with what
speech is unprotected. When a definable class of
material, such as that covered by the New York
statute, bears so heavily and pervasively on the
welfare of children engaged in its production, the
balance of competing interests is clearly struck, and
it is permissible to consider these materials as
without the First Amendment's protection. Pp. 458
U. S. 756-764.
(b) The New York statute describes a category of
material the production and distribution of which is
not entitled to First Amendment protection.
Accordingly, there is nothing unconstitutionally
"under inclusive" about the statute, and the State is
not barred by the First Amendment from prohibiting
the distribution of such unprotected materials
produced outside the State. Pp. 458 U. S. 764-766.
(c) Nor is the New York statute unconstitutionally
overbroad as forbidding the distribution of material
with serious literary, scientific, or educational value.
The substantial overbreadth rule of Broadrick v.
Oklahoma, 413 U. S. 601, applies. This is the
paradigmatic case of a state statute whose
legitimate reach dwarfs its arguably impermissible
applications.
"[W]hatever overbreadth may exist should be cured
through case-by-case analysis of the fact situations
to which [the statute's] sanctions, assertedly, may
not be applied."
Broadrick v. Oklahoma, supra, at 413 U. S. 615-
616. Pp. 458 U. S. 766-774. 52 N.Y.2d 674, 422
N.E.2d 523, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in
which BURGER, C.J., and POWELL, REHNQUIST,
CONSTI LAW II ACJUCO 224
and O'CONNOR, JJ., joined. O'CONNOR, J., filed
a concurring opinion, post, p. 458 U. S. 774.
BRENNAN, J., filed an opinion concurring in the
judgment, in which MARSHALL, J., joined, post, p.
458 U. S. 775. BLACKMUN, J., concurred in the
result. STEVENS, J., filed an opinion concurring in
the judgment, post, p. 458 U. S. 777.
JUSTICE WHITE delivered the opinion of the
Court.
At issue in this case is the constitutionality of a New
York criminal statute which prohibits persons from
knowingly promoting sexual performances by
children under the age of 16 by distributing material
which depicts such performances.
I
In recent years, the exploitive use of children in the
production of pornography has become a serious
national problem. [Footnote 1] The Federal
Government and 47 States have sought to combat
the problem with statutes specifically directed at the
production of child pornography. At least half of
such statutes do not require that the materials
produced be legally obscene. Thirty-five States and
the United States Congress have also passed
legislation prohibiting the distribution of such
materials; 20 States prohibit the distribution of
material depicting children engaged in sexual
conduct without requiring that the material be
legally obscene. [Footnote 2]
New York is one of the 20. In 1977, the New York
Legislature enacted Article 263 of its Penal Law.
N.Y.Penal Law, Art. 263 (McKinney 1980). Section
263.05 criminalizes as a class C felony the use of a
child in a sexual performance:
"A person is guilty of the use of a child in a sexual
performance if knowing the character and content
thereof he employs, authorizes or induces a child
less than sixteen years of age to engage in a
sexual performance or being a parent, legal
guardian or custodian of such child, he consents to
the participation by such child in a sexual
performance."
A "[s]exual performance" is defined as "any
performance or part thereof which includes sexual
conduct by a child less than sixteen years of age."
§ 263.00(1). "Sexual conduct" is in turn defined in §
263.00(3):

"'Sexual conduct' means actual or simulated sexual
intercourse, deviate sexual intercourse, sexual
bestiality, masturbation, sado-masochistic abuse,
or lewd exhibition of the genitals."
A performance is defined as "any play, motion
picture, photograph or dance" or "any other visual
representation exhibited before an audience." §
263.00(4).
At issue in this case is § 263.15, defining a class D
felony: [Footnote 3]
"A person is guilty of promoting a sexual
performance by a child when, knowing the
character and content thereof, he produces, directs
or promotes any performance which includes
sexual conduct by a child less than sixteen years of
age."
To "promote" is also defined:
"'Promote' means to procure, manufacture, issue,
sell, give, provide, lend, mail, deliver, transfer,
transmute, publish, distribute, circulate,
disseminate, present, exhibit or advertise, or to
offer or agree to do the same."
§ 263.00(5). A companion provision bans only the
knowing dissemination of obscene material. §
263.10.
This case arose when Paul Ferber, the proprietor of
a Manhattan bookstore specializing in sexually
oriented products, sold two films to an undercover
police officer. The films are devoted almost
exclusively to depicting young boys masturbating.
Ferber was indicted on two counts of violating §
263.10 and two counts of violating § 263.15, the
two New York laws controlling dissemination of
child pornography. [Footnote 4] After a jury trial,
Ferber was acquitted of the two counts of
promoting an obscene sexual performance, but
found guilty of the two counts under § 263.15,
which did not require proof that the films were
obscene. Ferber's convictions were affirmed
without opinion by the Appellate Division of the
New York State Supreme Court. 74 App.Div.2d
558, 424 N.Y.S.2d 967 (1980).
The New York Court of Appeals reversed, holding
that § 263.15 violated the First Amendment. 52
N.Y.2d 674, 422 N.E.2d 523 (1981). The court
began by noting that, in light of § 263.10's explicit
CONSTI LAW II ACJUCO 225
inclusion of an obscenity standard, § 263.15 could
not be construed to include such a standard.
Therefore, "the statute would . . . prohibit the
promotion of materials which are traditionally
entitled to constitutional protection from
government interference under the First
Amendment."
52 N.Y.2d at 678, 422 N.E.2d at 525. Although the
court recognized the State's "legitimate interest in
protecting the welfare of minors" and noted that this
"interest may transcend First Amendment
concerns," id. at 679, 422 N.E.2d at 525-526, it
nevertheless found two fatal defects in the New
York statute. Section 263.15 was underinclusive
because it discriminated against visual portrayals of
children engaged in sexual activity by not also
prohibiting the distribution of films of other
dangerous activity. It was also overbroad because
it prohibited the distribution of materials produced
outside the State, as well as materials, such as
medical books and educational sources, which
"deal with adolescent sex in a realistic but
nonobscene manner." 52 N.Y.2d at 681, 422
N.E.2d at 526. Two judges dissented. We granted
the State's petition for certiorari, 454 U.S. 1052
(1981), presenting the single question:
"To prevent the abuse of children who are made to
engage in sexual conduct for commercial purposes,
could the New York State Legislature, consistent
with the First Amendment, prohibit the
dissemination of material which shows children
engaged in sexual conduct, regardless of whether
such material is obscene?"
II
The Court of Appeals proceeded on the assumption
that the standard of obscenity incorporated in §
263.10, which follows the guidelines enunciated in
Miller v. California, 413 U. S. 15 (1973), [Footnote
5] constitutes the appropriate line dividing protected
from unprotected expression by which to measure
a regulation directed at child pornography. It was
on the premise that "nonobscene adolescent sex"
could not be singled out for special treatment that
the court found § 263.15 "strikingly underinclusive."
Moreover, the assumption that the constitutionally
permissible regulation of pornography could not be
more extensive with respect to the distribution of
material depicting children may also have led the
court to conclude that a narrowing construction of §
263.15 was unavailable.

The Court of Appeals' assumption was not
unreasonable in light of our decisions. This case,
however, constitutes our first examination of a
statute directed at and limited to depictions of
sexual activity involving children. We believe our
inquiry should begin with the question of whether a
State has somewhat more freedom in proscribing
works which portray sexual acts or lewd exhibitions
of genitalia by children.
A In Miller v. California, supra, a majority of the Court
In Chaplinsky v. New Hampshire, 315 U. S. 568
(1942), the Court laid the foundation for the
excision of obscenity from the realm of
constitutionally protected expression:
"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 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."
Embracing this judgment, the Court squarely held
in Roth v. United States, 354 U. S. 476 (1957), that
"obscenity is not within the area of constitutionally
protected speech or press." Id. at 354 U. S. 485.
The Court recognized that "rejection of obscenity
as utterly without redeeming social importance"
was implicit in the history of the First Amendment:
the original States provided for the prosecution of
libel, blasphemy, and profanity, and the "universal
judgment that obscenity should be restrained [is]
reflected in the international agreement of over 50
nations, in the obscenity laws of all of the 48 states,
and in the 20 obscenity laws enacted by Congress
from 1842 to 1956."
Roth was followed by 15 years during which this
Court struggled with "the intractable obscenity
problem." Despite considerable vacillation over the
proper definition of obscenity, a majority of the
Members of the Court remained firm in the position
that "the States have a legitimate interest in
prohibiting dissemination or exhibition of obscene
material when the mode of dissemination carries
with it a significant danger of offending the
CONSTI LAW II ACJUCO 226
sensibilities of unwilling recipients or of exposure to
juveniles."
Throughout this period, we recognized "the
inherent dangers of undertaking to regulate any
form of expression." Miller v. California, supra, at
413 U. S. 23. Consequently, our difficulty was not
only to assure that statutes designed to regulate
obscene materials sufficiently defined what was
prohibited, but also to devise substantive limits on
what fell within the permissible scope of regulation.
agreed that 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."
Over the past decade, we have adhered to the
guidelines expressed in Miller, [Footnote 6] which
subsequently has been followed in the regulatory
schemes of most States. [Footnote 7]
B
The Miller standard, like its predecessors, was an
accommodation between the State's interests in
protecting the "sensibilities of unwilling recipients"
from exposure to pornographic material and the
dangers of censorship inherent in unabashedly
content-based laws. Like obscenity statutes, laws
directed at the dissemination of child pornography
run the risk of suppressing protected expression by
allowing the hand of the censor to become unduly
heavy. For the following reasons, however, we are
persuaded that the States are entitled to greater
leeway in the regulation of pornographic depictions
of children.
First. It is evident beyond the need for elaboration
that a State's interest in "safeguarding the physical
and psychological wellbeing of a minor" is
"compelling." Globe Newspaper Co. v. Superior
Court, 457 U. S. 596, 457 U. S. 607 (1982). "A
democratic society rests, for its continuance, upon
the healthy, well-rounded growth of young people
into full maturity as citizens." Prince v.
Massachusetts, 321 U. S. 158, 321 U. S. 168
(1944). Accordingly, we have sustained legislation
aimed at protecting the physical and emotional
wellbeing of youth even when the laws have
operated in the sensitive area of constitutionally
protected rights. In Prince v. Massachusetts, supra,

the Court held that a statute prohibiting use of a
child to distribute literature on the street was valid
notwithstanding the statute's effect on a First
Amendment activity. In Ginsberg v. New York,
supra, we sustained a New York law protecting
children from exposure to nonobscene literature.
Most recently, we held that the Government's
interest in the "wellbeing of its youth" justified
special treatment of indecent broadcasting received
by adults as well as children. FCC v. Pacifica
Foundation, 438 U. S. 726 (1978).
The prevention of sexual exploitation and abuse of
children constitutes a government objective of
surpassing importance. The legislative findings
accompanying passage of the New York laws
reflect this concern:
"[T]here has been a proliferation of exploitation of
children as subjects in sexual performances. The
care of children is a sacred trust and should not be
abused by those who seek to profit through a
commercial network based upon the exploitation of
children. The public policy of the state demands the
protection of children from exploitation through
sexual performances."
We shall not second-guess this legislative
judgment. Respondent has not intimated that we do
so. Suffice it to say that virtually all of the States
and the United States have passed legislation
proscribing the production of or otherwise
combating "child pornography." The legislative
judgment, as well as the judgment found in the
relevant literature, is that the use of children as
subjects of pornographic materials is harmful to the
physiological, emotional, and mental health of the
child. [Footnote 9] That judgment, we think, easily
passes muster under the First Amendment.
Second. The distribution of photographs and films
depicting sexual activity by juveniles is intrinsically
related to the sexual abuse of children in at least
two ways. First, the materials produced are a
permanent record of the children's participation and
the harm to the child is exacerbated by their
circulation. [Footnote 10] Second, the distribution
network for child pornography must be closed if the
production of material which requires the sexual
exploitation of children is to be effectively
controlled. Indeed, there is no serious contention
that the legislature was unjustified in believing that
it is difficult, if not impossible, to halt the exploitation
of children by pursuing only those who produce the
CONSTI LAW II ACJUCO 227
photographs and movies. While the production of
pornographic materials is a low profile, clandestine
industry, the need to market the resulting products
requires a visible apparatus of distribution. The
most expeditious, if not the only practical, method
of law enforcement may be to dry up the market for
this material by imposing severe criminal penalties
on persons selling, advertising, or otherwise
promoting the product. Thirty-five States and
Congress have concluded that restraints on the
distribution of pornographic materials are required
in order to effectively combat the problem, and
there is a body of literature and testimony to
support these legislative conclusions. [Footnote 11]
Cf. United States v. Darby, 312 U. S. 100 (1941)
(upholding federal restrictions on sale of goods
manufactured in violation of Fair Labor Standards
Act).
Respondent does not contend that the State is
unjustified in pursuing those who distribute child
pornography. Rather, he argues that it is enough
for the State to prohibit the distribution of materials
that are legally obscene under the Miller test. While
some States may find that this approach properly
accommodates its interests, it does not follow that
the First Amendment prohibits a State from going
further. The Miller standard, like all general
definitions of what may be banned as obscene,
does not reflect the State's particular and more
compelling interest in prosecuting those who
promote the sexual exploitation of children. Thus,
the question under the Miller test of whether a
work, taken as a whole, appeals to the prurient
interest of the average person bears no connection
to the issue of whether a child has been physically
or psychologically harmed in the production of the
work. Similarly, a sexually explicit depiction need
not be "patently offensive" in order to have required
the sexual exploitation of a child for its production.
In addition, a work which, taken on the whole,
contains serious literary, artistic, political, or
scientific value may nevertheless embody the
hardest core of child pornography. "It is irrelevant to
the child [who has been abused] whether or not the
material . . . has a literary, artistic, political or social
value." Memorandum of Assemblyman Lasher in
Support of § 263.15. We therefore cannot conclude
that the Miller standard is a satisfactory solution to
the child pornography problem. [Footnote 12]
Third. The advertising and selling of child
pornography provide an economic motive for, and
are thus an integral part of, the production of such

materials, an activity illegal throughout the Nation.
[Footnote 13]
"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."
Giboney v. Empire Storage & Ice Co., 336 U. S.
490, 336 U. S. 498 (1949). [Footnote 14] We note
that, were the statutes outlawing the employment of
children in these films and photographs fully
effective, and the constitutionality of these laws has
not been questioned, the First Amendment
implications would be no greater than that
presented by laws against distribution: enforceable
production laws would leave no child pornography
to be marketed. [Footnote 15]
Fourth. The value of permitting live performances
and photographic reproductions of children
engaged in lewd sexual conduct is exceedingly
modest, if not de minimis. We consider it unlikely
that visual depictions of children performing sexual
acts or lewdly exhibiting their genitals would often
constitute an important and necessary part of a
literary performance or scientific or educational
work. As a state judge in this case observed, if it
were necessary for literary or artistic value, a
person over the statutory age who perhaps looked
younger could be utilized. [Footnote 16] Simulation
outside of the prohibition of the statute could
provide another alternative. Nor is there any
question here of censoring a particular literary
theme or portrayal of sexual activity. The First
Amendment interest is limited to that of rendering
the portrayal somewhat more "realistic" by utilizing
or photographing children.
Fifth. Recognizing and classifying child
pornography as a category of material outside the
protection of the First Amendment is not
incompatible with our earlier decisions. "The
question whether speech is, or is not, protected by
the First Amendment often depends on the content
of the speech." Young v. American Mini Theatres,
Inc., 427 U. S. 50, 427 U. S. 66 (1976) (opinion of
STEVENS, J., joined by BURGER, C.J., and
WHITE and REHNQUIST JJ.). See also FCC v.
Pacifica Foundation, 438 U. S. 726, 438 U. S. 742-
748 (1978) (opinion of STEVENS, J., joined by
BURGER, C.J., and REHNQUIST, J.). "[I]t is the
content of [an] utterance that determines whether it
is a protected epithet or an unprotected fighting
CONSTI LAW II ACJUCO 228
comment.'" Young v. American Mini Theatres, Inc.,
supra, at 427 U. S. 66. See Chaplinsky v. New
Hampshire, 315 U. S. 568 (1942). Leaving aside
the special considerations when public officials are
the target, New York Times Co. v. Sullivan, 376 U.
S. 254 (1964), a libelous publication is not
protected by the Constitution. Beauharnais v.
Illinois, 343 U. S. 250 (1952). Thus, it is not rare
that a content-based classification of speech has
been accepted because it may be appropriately
generalized that within the confines of the given
classification, the evil to be restricted so
overwhelmingly outweighs the expressive interests,
if any, at stake, that no process of case-by-case
adjudication is required. When a definable class of
material, such as that covered by § 263.15, bears
so heavily and pervasively on the welfare of
children engaged in its production, we think the
balance of competing interests is clearly struck, and
that it is permissible to consider these materials as
without the protection of the First Amendment.
C
There are, of course, limits on the category of child
pornography which, like obscenity, is unprotected
by the First Amendment. As with all legislation in
this sensitive area, the conduct to be prohibited
must be adequately defined by the applicable state
law, as written or authoritatively construed. Here
the nature of the harm to be combated requires that
the state offense be limited to works that visually
depict sexual conduct by children below a specified
age. [Footnote 17] The category of "sexual
conduct" proscribed must also be suitably limited
and described.
The test for child pornography is separate from the
obscenity standard enunciated in Miller, but may be
compared to it for the purpose of clarity. The Miller
formulation is adjusted in the following respects: a
trier of fact need not find that the material appeals
to the prurient interest of the average person; it is
not required that sexual conduct portrayed be done
so in a patently offensive manner; and the material
at issue need not be considered as a whole. We
note that the distribution of descriptions or other
depictions of sexual conduct, not otherwise
obscene, which do not involve live performance or
photographic or other visual reproduction of live
performances, retains First Amendment protection.
As with obscenity laws, criminal responsibility may
not be imposed without some element of scienter
on the part of the defendant. Smith v. California,

361 U. S. 147 (1959); Hamling v. United States,
418 U. S. 87 (1974).
D "[T]he statute would prohibit the showing of any
Section 263.15's prohibition incorporates a
definition of sexual conduct that comports with the
above-stated principles. The forbidden acts to be
depicted are listed with sufficient precision and
represent the kind of conduct that, if it were the
theme of a work, could render it legally obscene:
"actual or simulated sexual intercourse, deviate
sexual intercourse, sexual bestiality, masturbation,
sado-masochistic abuse, or lewd exhibition of the
genitals."
§ 263.00(3). The term "lewd exhibition of the
genitals" is not unknown in this area and, indeed,
was given in Miller as an example of a permissible
regulation. 413 U.S. at 413 U. S. 25. A performance
is defined only to include live or visual depictions:
"any play, motion picture, photograph or dance . . .
[or] other visual representation exhibited before an
audience." § 263.00(4). Section 263.15 expressly
includes a scienter requirement.
We hold that § 263.15 sufficiently describes a
category of material the production and distribution
of which is not entitled to First Amendment
protection. It is therefore clear that there is nothing
unconstitutionally "underinclusive" about a statute
that singles out this category of material for
proscription. [Footnote 18] It also follows that the
State is not barred by the First Amendment from
prohibiting the distribution of unprotected materials
produced outside the State. [Footnote 19]
III
It remains to address the claim that the New York
statute is unconstitutionally overbroad because it
would forbid the distribution of material with serious
literary, scientific, or educational value or material
which does not threaten the harms sought to be
combated by the State. Respondent prevailed on
that ground below, and it is to that issue that we
now turn.
The New York Court of Appeals recognized that
overbreadth scrutiny has been limited with respect
to conduct-related regulation, Broadrick v.
Oklahoma, 413 U. S. 601 (1973), but it did not
apply the test enunciated in Broadrick because the
challenged statute, in its view, was directed at
CONSTI LAW II ACJUCO 229
"pure speech." The court went on to find that §
263.15 was fatally overbroad:
play or movie in which a child portrays a defined
sexual act, real or simulated, in a nonobscene
manner. It would also prohibit the sale, showing, or
distributing of medical or educational materials
containing photographs of such acts.
Indeed, by its terms, the statute would prohibit
those who oppose such portrayals from providing
illustrations of what they oppose."
While the construction that a state court gives a
state statute is not a matter subject to our review,
Wainwright v. Stone, 414 U. S. 21, 414 U. S. 22-23
(1973); Gooding v. Wilson, 405 U. S. 518, 405 U.
S. 520 (1972), this Court is the final arbiter of
whether the Federal Constitution necessitated the
invalidation of a state law. It is only through this
process of review that we may correct erroneous
applications of the Constitution that err on the side
of an overly broad reading of our doctrines and
precedents, as well as state court decisions giving
the Constitution too little shrift. A state court is not
free to avoid a proper facial attack on federal
constitutional grounds. Bigelow v. Virginia, 421 U.
S. 809, 421 U. S. 817 (1975). By the same token, it
should not be compelled to entertain an
overbreadth attack when not required to do so by
the Constitution.
A
The traditional rule is that a person to whom a
statute may constitutionally be applied may not
challenge that statute on the ground that it may
conceivably be applied unconstitutionally to others
in situations not before the Court. Broadrick v.
Oklahoma, supra, at 413 U. S. 610; United States
v. Raines, 362 U. S. 17, 362 U. S. 21 (1960);
Carmichael v. Southern Coal & Coke Co., 301 U. S.
495, 301 U. S. 513 (1937); Yazoo & M. V. R. Co. v.
Jackson Vinegar Co., 226 U. S. 217, 226 U. S. 219-
220 (1912). In Broadrick, we recognized that this
rule reflects two cardinal principles of our
constitutional order: the personal nature of
constitutional rights, McGowan v. Maryland, 366 U.
S. 420, 366 U. S. 429 (1961), and prudential
limitations on constitutional adjudication. [Footnote
20] In United States v. Raines, supra, at 362 U. S.
21, we noted the "incontrovertible proposition" that
it

"'would indeed be undesirable for this Court to
consider every conceivable situation which might
possibly arise in the application of complex and
comprehensive legislation,'" (quoting Barrows v.
Jackson, 346 U. S. 249, 346 U. S. 256 (1953)). By
focusing on the factual situation before us, and
similar cases necessary for development of a
constitutional rule, [Footnote 21] we face "flesh-
and-blood" [Footnote 22] legal problems with data
"relevant and adequate to an informed judgment."
[Footnote 23] This practice also fulfills a valuable
institutional purpose: it allows state courts the
opportunity to construe a law to avoid constitutional
infirmities.
What has come to be known as the First
Amendment overbreadth doctrine is one of the few
exceptions to this principle, and must be justified by
"weighty countervailing policies." United States v.
Raines, supra, at 362 U. S. 223. The doctrine is
predicated on the sensitive nature of protected
expression: "persons whose expression is
constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions
by a statute susceptible of application to protected
expression."
Village of Schaumburg v.
Citizens for a Better Environment, 444 U. S. 620,
444 U. S. 634 (1980); Gooding v. Wilson, supra, at
405 U. S. 521. It is for this reason that we have
allowed persons to attack overly broad statutes
even though the conduct of the person making the
attack is clearly unprotected, and could be
proscribed by a law drawn with the requisite
specificity. Dombrowski v. Pfister, 380 U. S. 479,
380 U. S. 486 (1965); Thornhill v. Alabama, 310 U.
S. 88, 310 U. S. 97-98 (1940); United States v.
Raines, supra, at 362 U. S. 21-22; Gooding v.
Wilson, supra, at 405 U. S. 521.
The scope of the First Amendment overbreadth
doctrine, like most exceptions to established
principles, must be carefully tied to the
circumstances in which facial invalidation of a
statute is truly warranted. Because of the wide-
reaching effects of striking down a statute on its
face at the request of one whose own conduct may
be punished despite the First Amendment, we have
recognized that the overbreadth doctrine is "strong
medicine," and have employed it with hesitation,
and then "only as a last resort." Broadrick, 413 U.S.
CONSTI LAW II ACJUCO 230
at 413 U. S. 613. We have, in consequence,
insisted that the overbreadth involved be
"substantial" before the statute involved will be
invalidated on its face. [Footnote 24]
In Broadrick, we explained the basis for this
requirement:
"[T]he plain import of our cases is, at the very least,
that facial overbreadth adjudication is an exception
to our traditional rules of practice, and that its
function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids
the State to sanction moves from 'pure speech'
toward conduct, and that conduct -- even if
expressive -- falls within the scope of otherwise
valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.
Although such laws, if too broadly worded, may
deter protected speech to some unknown extent,
there comes a point where that effect -- at best a
prediction -- cannot, with confidence, justify
invalidating a statute on its face, and so prohibiting
a State from enforcing the statute against conduct
that is admittedly within its power to proscribe. Cf.
Aldelman v. United States, 394 U. S. 165, 394 U. S.
174-175 (1969)."
We accordingly held that, "particularly where
conduct, and not merely speech, is involved, we
believe that the overbreadth of a statute must not
only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep."
Broadrick examined a regulation involving
restrictions on political campaign activity, an area
not considered "pure speech," and thus it was
unnecessary to consider the proper overbreadth
test when a law arguably reaches traditional forms
of expression such as books and films. As we
intimated in Broadrick, the requirement of
substantial overbreadth extended "at the very least"
to cases involving conduct plus speech. This case,
which poses the question squarely, convinces us
that the rationale of Broadrick is sound, and should
be applied in the present context involving the
harmful employment of children to make sexually
explicit materials for distribution.
The premise that a law should not be invalidated for
overbreadth unless it reaches a substantial number
of impermissible applications is hardly novel. On
most occasions involving facial invalidation, the

Court has stressed the embracing sweep of the
statute over protected expression. [Footnote 26]
Indeed, JUSTICE BRENNAN observed in his
dissenting opinion in Broadrick:
"We have never held that a statute should be held
invalid on its face merely because it is possible to
conceive of a single impermissible application, and
in that sense, a requirement of substantial
overbreadth is already implicit in the doctrine."
Id. at 413 U. S. 630. The requirement of substantial
overbreadth is directly derived from the purpose
and nature of the doctrine. While a sweeping
statute, or one incapable of limitation, has the
potential to repeatedly chill the exercise of
expressive activity by many individuals, the extent
of deterrence of protected speech can be expected
to decrease with the declining reach of the
regulation. [Footnote 27] This observation appears
equally applicable to the publication of books and
films as it is to activities, such as picketing or
participation in election campaigns, which have
previously been categorized as involving conduct
plus speech. We see no appreciable difference
between the position of a publisher or bookseller in
doubt as to the reach of New York's child
pornography law and the situation faced by the
Oklahoma state employees with respect to that
State's restriction on partisan political activity.
Indeed, it could reasonably be argued that the
bookseller, with an economic incentive to sell
materials that may fall within the statute's scope,
may be less likely to be deterred than the employee
who wishes to engage in political campaign activity.
Cf. Bates v. State Bar of Arizona, 433 U. S. 350,
433 U. S. 380-381 (1977) (overbreadth analysis
inapplicable to commercial speech).
This requirement of substantial overbreadth may
justifiably be applied to statutory challenges which
arise in defense of a criminal prosecution as well as
civil enforcement or actions seeking a declaratory
judgment. Cf. Parker v. Levy, 417 U. S. 733, 417 U.
S. 760 (1974). Indeed, the Court's practice when
confronted with ordinary criminal laws that are
sought to be applied against protected conduct is
not to invalidate the law in toto, but rather to
reverse the particular conviction. Cantwell v.
Connecticut, 310 U. S. 296 (1940); Edwards v.
South Carolina, 372 U. S. 229 (1973). We
recognize, however, that the penalty to be imposed
is relevant in determining whether demonstrable
CONSTI LAW II ACJUCO 231
overbreadth is substantial. We simply hold that the
fact that a criminal prohibition is involved does not
obviate the need for the inquiry or a priori warrant a
finding of substantial overbreadth.
Applying these principles, we hold that § 263.15 is
not substantially overbroad. We consider this the
paradigmatic case of a state statute whose
legitimate reach dwarfs its arguably impermissible
applications. New York, as we have held, may
constitutionally prohibit dissemination of material
specified in § 263.15. While the reach of the statute
is directed at the hard core of child pornography,
the Court of Appeals was understandably
concerned that some protected expression, ranging
from medical textbooks to pictorials in the National
Geographic would fall prey to the statute. How
often, if ever, it may be necessary to employ
children to engage in conduct clearly within the
reach of § 263.15 in order to produce educational,
medical, or artistic works cannot be known with
certainty. Yet we seriously doubt, and it has not
been suggested, that these arguably impermissible
applications of the statute amount to more than a
tiny fraction of the materials within the statute's
reach. Nor will we assume that the New York courts
will widen the possibly invalid reach of the statute
by giving an expansive construction to the
proscription on "lewd exhibition[s] of the genitals."
Under these circumstances, § 263.15 is "not
substantially overbroad, and . . . whatever
overbreadth may exist
should be cured through case-by-case analysis of
the fact situations to which its sanctions, assertedly,
may not be applied."
IV
Because § 263.15 is not substantially overbroad, it
is unnecessary to consider its application to
material that does not depict sexual conduct of a
type that New York may restrict consistent with the
First Amendment. As applied to Paul Ferber and to
others who distribute similar material, the statute
does not violate the First Amendment as applied to
the States through the Fourteenth. [Footnote 28]
The judgment of the New York Court of Appeals is
reversed, and the case is remanded to that court
for further proceedings not inconsistent with this
opinion.
So ordered.
JUSTICE BLACKMUN concurs in the result.
 CONSTI LAW II ACJUCO 232

RENO V. AMERICAN CIVIL LIBERTIES UNION

(96-511)

Argued: March 19, 1997

Decided: June 26, 1997

Syllabus

Two provisions of the Communications Decency

Act of 1996 (CDA or Act) seek to protect minors
from harmful material on the Internet, an
international network of interconnected computers
that enables millions of people to communicate with
one another in "cyberspace" and to access vast
amounts of information from around the world. Title
47 U. S. C. A. § 223(a)(1)(B)(ii) (Supp. 1997)
criminalizes the "knowing" transmission of
"obscene or indecent" messages to any recipient
under 18 years of age. Section 223(d) prohibits the
"knowin[g]" sending or displaying to a person under
18 of any message "that, in context, depicts or
describes, in terms patently offensive as measured
by contemporary community standards, sexual or
excretory activities or organs." Affirmative defenses
are provided for those who take "good faith, . . .
effective . . . actions" to restrict access by minors to
the prohibited communications, § 223(e)(5)(A), and
those who restrict such access by requiring certain
designated forms of age proof, such as a verified
credit card or an adult identification number, §

223(e)(5)(B). A number of plaintiffs filed suit
challenging the constitutionality of §§ 223(a)(1) and
223(d). After making extensive findings of fact, a
three judge District Court convened pursuant to the
Act entered a preliminary injunction against
enforcement of both challenged provisions. The
court's judgment enjoins the Government from
enforcing § 223(a)(1)(B)'s prohibitions insofar as
they relate to "indecent" communications, but
expressly preserves the Government's right to
investigate and prosecute the obscenity or child
pornography activities prohibited therein. The
injunction against enforcement of § 223(d) is
unqualified because that section contains no
separate reference to obscenity or child
pornography. The Government appealed to this
Court under the Act's special review provisions,
arguing that the District Court erred in holding that
the CDA violated both the First Amendment
because it is overbroad and the Fifth Amendment
because it is vague.
Held: The CDA's "indecent transmission" and
"patently offensive display" provisions abridge "the
freedom of speech" protected by the First
Amendment. Pp. 17-40.
(a) Although the CDA's vagueness is relevant to
the First Amendment overbreadth inquiry, the
judgment should be affirmed without reaching the
Fifth Amendment issue. P. 17.
(b) A close look at the precedents relied on by the
Government--Ginsberg v. New York, 390 U.S. 629;
FCC v. Pacifica Foundation, 438 U.S. 726; and
Renton v. Playtime Theatres, Inc., 475 U.S. 41--
raises, rather than relieves, doubts about the CDA's
constitutionality. The CDA differs from the various
laws and orders upheld in those cases in many
ways, including that it does not allow parents to
consent to their children's use of restricted
materials; is not limited to commercial transactions;
fails to provide any definition of "indecent" and
omits any requirement that "patently offensive"
material lack socially redeeming value; neither
limits its broad categorical prohibitions to particular
times nor bases them on an evaluation by an
agency familiar with the medium's unique
characteristics; is punitive; applies to a medium
that, unlike radio, receives full First Amendment
protection; and cannot be properly analyzed as a
form of time, place, and manner regulation because
it is a content based blanket restriction on speech.
These precedents, then, do not require the Court to
CONSTI LAW II ACJUCO 233
uphold the CDA and are fully consistent with the
application of the most stringent review of its
provisions. Pp. 17-21.
(c) The special factors recognized in some of the
Court's cases as justifying regulation of the
broadcast media--the history of extensive
government regulation of broadcasting, see, e.g.,
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
399-400; the scarcity of available frequencies at its
inception, see, e.g., Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 637-638; and its
"invasive" nature, see Sable Communications of
Cal., Inc. v. FCC, 492 U.S. 115, 128--are not
present in cyberspace. Thus, these cases provide
no basis for qualifying the level of First Amendment
scrutiny that should be applied to the Internet. Pp.
22-24.
(d) Regardless of whether the CDA is so vague that
it violates the Fifth Amendment, the many
ambiguities concerning the scope of its coverage
render it problematic for First Amendment
purposes. For instance, its use of the undefined
terms "indecent" and "patently offensive" will
provoke uncertainty among speakers about how
the two standards relate to each other and just
what they mean. The vagueness of such a content
based regulation, see, e.g., Gentile v. State Bar of
Nev., 501 U.S. 1030, coupled with its increased
deterrent effect as a criminal statute, see, e.g.,
Dombrowski v. Pfister, 380 U.S. 479, raise special
First Amendment concerns because of its obvious
chilling effect on free speech. Contrary to the
Government's argument, the CDA is not saved
from vagueness by the fact that its "patently
offensive" standard repeats the second part of the
three prong obscenity test set forth in Miller v.
California, 413 U.S. 15, 24. The second Miller
prong reduces the inherent vagueness of its own
"patently offensive" term by requiring that the
proscribed material be "specifically defined by the
applicable state law." In addition, the CDA applies
only to "sexual conduct," whereas, the CDA
prohibition extends also to "excretory activities" and
"organs" of both a sexual and excretory nature.
Each of Miller's other two prongs also critically
limits the uncertain sweep of the obscenity
definition. Just because a definition including three
limitations is not vague, it does not follow that one
of those limitations, standing alone, is not vague.
The CDA's vagueness undermines the likelihood
that it has been carefully tailored to the

congressional goal of protecting minors from
potentially harmful materials. Pp. 24-28.
(e) The CDA lacks the precision that the First
Amendment requires when a statute regulates the
content of speech. Although the Government has
an interest in protecting children from potentially
harmful materials, see, e.g., Ginsberg, 390 U. S., at
639, the CDA pursues that interest by suppressing
a large amount of speech that adults have a
constitutional right to send and receive, see, e.g.,
Sable, supra, at 126. Its breadth is wholly
unprecedented. The CDA's burden on adult speech
is unacceptable if less restrictive alternatives would
be at least as effective in achieving the Act's
legitimate purposes. See, e.g., Sable, 492 U. S., at
126. The Government has not proved otherwise.
On the other hand, the District Court found that
currently available user based software suggests
that a reasonably effective method by which
parents can prevent their children from accessing
material which the parents believe is inappropriate
will soon be widely available. Moreover, the
arguments in this Court referred to possible
alternatives such as requiring that indecent material
be "tagged" to facilitate parental control, making
exceptions for messages with artistic or educational
value, providing some tolerance for parental choice,
and regulating some portions of the Internet
differently than others. Particularly in the light of the
absence of any detailed congressional findings, or
even hearings addressing the CDA's special
problems, the Court is persuaded that the CDA is
not narrowly tailored. Pp. 28-33.
(f) The Government's three additional arguments
for sustaining the CDA's affirmative prohibitions are
rejected. First, the contention that the Act is
constitutional because it leaves open ample
"alternative channels" of communication is
unpersuasive because the CDA regulates speech
on the basis of its content, so that a "time, place,
and manner" analysis is inapplicable. See, e.g.,
Consolidated Edison Co. of N. Y. v. Public Serv.
Comm'n of N. Y., 447 U.S. 530, 536. Second, the
assertion that the CDA's "knowledge" and "specific
person" requirements significantly restrict its
permissible application to communications to
persons the sender knows to be under 18 is
untenable, given that most Internet forums are
open to all comers and that even the strongest
reading of the "specific person" requirement would
confer broad powers of censorship, in the form of a
"heckler's veto," upon any opponent of indecent
CONSTI LAW II ACJUCO 234
speech. Finally, there is no textual support for the
submission that material having scientific,
educational, or other redeeming social value will
necessarily fall outside the CDA's prohibitions. Pp.
33-35.
(g) The § 223(e)(5) defenses do not constitute the
sort of "narrow tailoring" that would save the CDA.
The Government's argument that transmitters may
take protective "good faith actio[n]" by "tagging"
their indecent communications in a way that would
indicate their contents, thus permitting recipients to
block their reception with appropriate software, is
illusory, given the requirement that such action be
"effective": The proposed screening software does
not currently exist, but, even if it did, there would be
no way of knowing whether a potential recipient
would actually block the encoded material. The
Government also failed to prove that § 223(b)(5)'s
verification defense would significantly reduce the
CDA's heavy burden on adult speech. Although
such verification is actually being used by some
commercial providers of sexually explicit material,
the District Court's findings indicate that it is not
economically feasible for most noncommercial
speakers. Pp. 35-37.
(h) The Government's argument that this Court
should preserve the CDA's constitutionality by
honoring its severability clause, § 608, and by
construing nonseverable terms narrowly, is
acceptable in only one respect. Because obscene
speech may be banned totally, see Miller, supra, at
18, and § 223(a)'s restriction of "obscene" material
enjoys a textual manifestation separate from that
for "indecent" material, the Court can sever the
term "or indecent" from the statute, leaving the rest
of § 223(a) standing. Pp. 37-39.
(i) The Government's argument that its "significant"
interest in fostering the Internet's growth provides
an independent basis for upholding the CDA's
constitutionality is singularly unpersuasive. The
dramatic expansion of this new forum contradicts
the factual basis underlying this contention: that the
unregulated availability of "indecent" and "patently
offensive" material is driving people away from the
Internet. P. 40.
929 F. Supp. 824, affirmed.
Stevens, J., delivered the opinion of the Court, in
which Scalia, Kennedy, Souter, Thomas, Ginsburg,
and Breyer, JJ., joined. O'Connor, J., filed an
 CONSTI LAW II ACJUCO 235

opinion concurring in the judgment in part and

dissenting in part, in which Rehnquist, C. J., joined

UNITED STATES v. WILLIAMS, (2008)

No. 06-694
Argued: October 30, 2007 Decided: May 19,
2008

After this Court found facially overbroad a federal

statutory provision criminalizing the possession and
distribution of material pandered as child
pornography, regardless of whether it actually was
that, Ashcroft v. Free Speech Coalition, 535 U. S.
234, Congress passed the pandering and
solicitation provision at issue, 18 U. S. C.
§2252A(a)(3)(B). Respondent Williams pleaded
guilty to this offense and others, but reserved the
right to challenge his pandering conviction's
constitutionality. The District Court rejected his
challenge, but the Eleventh Circuit reversed, finding
the statute both overbroad under the First
Amendment and impermissibly vague under the
Due Process Clause.

Held:

1. Section 2252A(a)(3)(B) is not overbroad

under the First Amendment. Pp. 6-18.

(a) A statute is facially invalid if it prohibits a
substantial amount of protected speech. Section
2252A(a)(3)(B) generally prohibits offers to provide
and requests to obtain child pornography. It targets
not the underlying material, but the collateral
speech introducing such material into the child-
pornography distribution network. Its definition of
material or purported material that may not be
pandered or solicited precisely tracks the material
held constitutionally proscribable in New York v.
Ferber, 458 U. S. 747, and Miller v. California, 413
U. S. 15: obscene material depicting (actual or
virtual) children engaged in sexually explicit
conduct, and any other material depicting actual
children engaged in sexually explicit conduct. The
statute's important features include: (1) a scienter
requirement; (2) operative verbs that are
reasonably read to penalize speech that
accompanies or seeks to induce a child
pornography transfer from one person to another;
(3) a phrase--"in a manner that reflects the belief,"
ibid.--that has both the subjective component that
the defendant must actually have held the "belief"
that the material or purported material was child
pornography, and the objective component that the
statement or action must manifest that belief; (4) a
phrase--"in a manner ... that is intended to cause
another to believe," ibid --that has only the
subjective element that the defendant must "intend"
that the listener believe the material to be child
pornography; and (5) a "sexually explicit conduct"
definition that is very similar to that in the New York
statute upheld in Ferber. Pp. 6-11.
(b) As thus construed, the statute does not
criminalize a substantial amount of protected
expressive activity. Offers to engage in illegal
transactions are categorically excluded from First
Amendment protection. E.g., Pittsburgh Press Co.
v. Pittsburgh Comm'n on Human Relations, 413 U.
S. 376, 388. The Eleventh Circuit mistakenly
believed that this exclusion extended only to
commercial offers to provide or receive contraband.
The exclusion's rationale, however, is based not on
the less privileged status of commercial speech, but
on the principle that offers to give or receive what it
is unlawful to possess have no social value and
thus enjoy no First Amendment protection. The
constitutional defect in Free Speech Coalition's
pandering provision was that it went beyond
pandering to prohibit possessing material that could
not otherwise be proscribed. The Eleventh Circuit's
erroneous conclusion led it to apply strict scrutiny to
CONSTI LAW II ACJUCO 236
§2252A(a)(3)(B), lodging three fatal objections that
lack merit. Pp. 11-18.
2. Section 2252A(a)(3)(B) is not impermissibly
vague under the Due Process Clause. A conviction
fails to comport with due process if the statute
under which it is obtained fails to provide a person
of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.
Hill v. Colorado, 530 U. S. 703, 732. In the First
Amendment context plaintiffs may argue that a
statute is overbroad because it is unclear whether it
regulates a substantial amount of protected
speech. Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U. S. 489, 494-495, and nn. 6
and 7. The Eleventh Circuit mistakenly believed
that "in a manner that reflects the belief" and "in a
manner ... that is intended to cause another to
believe" were vague and standardless phrases that
left the public with no objective measure of
conformance. What renders a statute vague,
however, is not the possibility that it will sometimes
be difficult to determine whether the incriminating
fact it establishes has been proved; but rather the
indeterminacy of what that fact is. See, e.g., Coates
v. Cincinnati, 402 U. S. 611, 614. There is no such
indeterminacy here. The statute's requirements are
clear questions of fact. It may be difficult in some
cases to determine whether the requirements have
been met, but courts and juries every day pass
upon the reasonable import of a defendant's
statements and upon "knowledge, belief and
intent." American Communications Assn. v. Douds,
339 U. S. 382, 411. Pp. 18-21.
444 F. 3d 1286, reversed.
SCALIA, J., delivered the opinion of the Court, in
which ROBERTS, C. J., and STEVENS,
KENNEDY, THOMAS, BREYER, and ALITO, JJ.,
joined. STEVENS, J., filed a concurring opinion, in
which BREYER, J., joined. SOUTER, J., filed a
dissenting opinion, in which GINSBURG, J., joined.