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VI. Freedom of Expression, Right to Assembly, and Academic Freedom
A. General Considerations
1. CHAVEZ V. GONZALES
545 SCRA 441 (2008)
It is established that freedom of the press is crucial and so inextricably woven into
the right to free speech and free expression, that any attempt to restrict it must be
met with an examination so critical that only a danger that is clear and present
would be allowed to curtail it. When on its face, it is clear that a governmental act
is nothing more than a naked means to prevent the free exercise of speech, it must
be nullified.
Facts:
On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the
opposition was planning to destabilize the administration by releasing an audiotape
of a mobile phone conversation, through wire-tapping, allegedly between the
President Gloria Arroyo, and a high-ranking official of the Commission on Elections
(COMELEC).
Later, in a Malacanang press briefing, Secretary Bunye produced two
versions of the tape, one supposedly the complete version, and the other, a
spliced, doctored or altered version, which would suggest that the President had
instructed the COMELEC official to manipulate the election results in the
Presidents favor. It seems that Secretary Bunye admitted that the voice was that
of President Arroyo, but subsequently made a retraction.
On June 7, 2005, former counsel of deposed President Estrada, Atty.
Alan Paguia, released an alleged authentic tape recording of the wiretap including
conversations of the President, the First Gentleman Jose Miguel Arroyo,
COMELEC Commissioner Garcillano, and the Senator Barbers.
On June 8, 2005, respondent Department of Justice (DOJ) Secretary
Gonzales warned reporters that those who had copies of the compact disc (CD)
and those broadcasting or publishing its contents could be held liable under the
Anti-Wiretapping Act; a continuing offense, subject to arrest by anybody who had
personal knowledge if the crime was committed or was being committed in their
presence. These persons included Secretary Bunye and Atty. Paguia.
On June 9, 2005, Secretary Gonzales ordered the National Bureau of
Investigation (NBI) to go after media organizations found to have caused the
spread, the playing and the printing of the contents of a tape of the alleged
wiretapped conversation. Gonzales said that he was going to start with Inq7.net,
a joint venture between the Philippine Daily Inquirer and GMA7 television
network, because by the very nature of the Internet medium, it was able to
disseminate the contents of the tape more widely. He then expressed his intention
of inviting the editors and managers of Inq7.net and GMA7 to a probe and to
conduct tactical interrogation.
On June 11, 2005, the NTC issued a press release giving warning to radio
and television owners/operators to observe anti-wiretapping law and pertinent
circulars on program standards, the pertinent part reads:
“It has been subsequently established that the said tapes are
false and/or fraudulent after a prosecution or appropriate investigation,
the concerned radio and television companies are hereby warned that
their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension,
revocation and/or cancellation of the licenses or authorizations
issued to the said companies.
xxx
The [NTC] will not hesitate, after observing the
requirements of due process, to apply with full force the provisions
of said Circulars and their accompanying sanctions on erring radio
and television stations and their owners/operators.”
On June 14, 2005, NTC held a dialogue with the Board of Directors of
the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the
KBP that the press release did not violate the constitutional freedom of speech, of
expression, and of the press, and the right to information.
Petitioner Chavez, al leging that the acts of respondents are violations of
the freedom of expression and of the press, and the right of the people to
information on matters of public concern, filed a petition to annul void proceedings,
and to prevent the unlawful, unconstitutional and oppressive exercise of authority
by the respondents.
Issue:
1. Whether or not the purported violation of the Anti-Wiretapping Act
necessitated the restraining of the freedom of speech and of the press
2. Whether or not the mere press statements of the Secretary of Justice
and of the NTC in question constitute a form of content-based prior restraint that
has transgressed the Constitution.
Ruling:
1. The Supreme Court held that NO, not every violation of a law will
justify straitjacketing the exercise of freedom of speech and of the press.
Our laws are of different kinds and doubtless, some of them provide norms of
conduct which even if violated have only an adverse effect on a person’s private
comfort but does not endanger national security. There are laws of great

significance but their violation, by itself and without more, cannot support
suppression of free speech and free press.
The Court should not be misinterpreted as devaluing violations of
law. By all means, violations of law should be vigorously prosecuted by the
State for they breed their own evil consequence. But to repeat, the need to
prevent their violation cannot per se trump the exercise of
free speech and free press, a preferred right whose breach can
lead to greater evils. For this failure of the respondents alone to offer proof to
satisfy the clear and present danger test, the Court has no option but to uphold the
exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of the
State.
A governmental action that restricts freedom of speech or
of the press based on content is given the strictest scrutiny, with the
government having the burden of overcoming the presumed unconstitutionality
by the clear and present danger rule. This rule applies equally to all kinds of
media, including broadcast media.
This outlines the procedural map to follow in cases like the one at bar
as it spells out the following: (a) the test; (b) the presumption; (c) the burden of
proof; (d) the party to discharge the burden; and (e) the quantum of evidence
necessary. On the basis of the records of the case at bar, respondents who have
the burden to show that these acts do not abridge freedom of speech and of the
press failed to hurdle the clear and present danger test. It appears that the great
evil which government wants to prevent is the airing of a tape recording in alleged
violation of the anti-wiretapping law. The records of the case at bar, however, are
confused and confusing, and respondent’s evidence falls short of satisfying the
clear and present danger test. Firstly, the various statements of the Press
Secretary obfuscate the identity of the voices in the tape recording. Secondly, the
integrity of the taped conversation is also suspect. The Press Secretary showed to
the public two versions, one supposed to be a complete version and the other, an
altered version. Thirdly, the evidence of the respondents on the whos and the
hows of the wiretapping act is ambivalent, especially considering the tapes
different versions. The identity of the wire-tappers, the manner of its commission
and other related and relevant proofs are some of the invisibles of this
case. Fourthly, given all these unsettled facets of the tape, it is even arguable
whether its airing would violate the anti-wiretapping law.
2. The Supreme Court held that NO, it is not decisive that the press
statements made by respondents were not reduced in or followed up with
formal orders or circulars. It is sufficient that the press statements were
made by respondents while in the exercise of their official functions.
Undoubtedly, respondent Gonzales made his statements as Secretary of Justice,
while the NTC issued its statement as the regulatory body of media. Any act done,
such as a speech uttered, for and on behalf of the government in an
official capacity is covered by the rule on prior restraint. The concept of an
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act does not limit itself to acts already converted to a formal order or official
circular. Otherwise, the non-formalization of an act into an official order or
circular will result in the easy circumvention of the prohibition on prior
restraint. The press statements at bar are acts that should be struck down as they
constitute impermissible forms of prior restraints on the right to free speech and
press.
There is enough evidence of chilling effect of the complained acts on
record. The warnings given to media came from no less the NTC, a regulatory
agency that can cancel the Certificate of Authority of the radio and broadcast
media. They also came from the Secretary of Justice, the alter ego of the
Executive, who wields the awesome power to prosecute those perceived to be
violating the laws of the land. After the warnings, the KBP inexplicably joined the
NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner
Chavez was left alone to fight this battle for freedom of speech and of the
press. This silence on the sidelines on the part of some media practitioners is too
deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts
should always be exercised with care and in light of the distinct facts of each
case. For there are no hard and fast rules when it comes to slippery constitutional
questions, and the limits and construct of relative freedoms are never set in
stone. Issues revolving on their construct must be decided on a case to case basis,
always based on the peculiar shapes and shadows of each case. But in cases
where the challenged acts are patent invasions of a constitutionally protected
right, we should be swift in striking them down as nullities per se. A blow too
soon struck for freedom is preferred than a blow too late.
2. SORIANO V LAGUARDIA
(2009 & 2010- consolidated)
To say any act that restrains speech should be greeted with furrowed brows is not
to say that any act that restrains or regulates speech or expression is per se invalid.
This only recognizes the importance of freedoms of speech and expression, and
indicates the necessity to carefully scrutinize acts that may restrain or regulate
speech.
FACTS:
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the
program Ang Dating Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di
ba. Yung putang babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol

pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang
babae yan. Sobra ang kasinungalingan ng mga demonyong ito.
Two days after, before the MTRCB, separate but almost identical
affidavit-complaints were lodged by Jessie L. Galapon and seven other private
respondents, all members of the Iglesia ni Cristo (INC), against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who felt
directly alluded to in petitioners remark, was then a minister of INC and a regular
host of the TV program Ang Tamang Daan. Forthwith, the MTRCB sent petitioner
a notice of the hearing on August 16, 2004 in relation to the alleged use of some
cuss words in the August 10, 2004 episode of Ang Dating Daan.
After a preliminary conference in which petitioner appeared, the MTRCB,
by Order of August 16, 2004, preventively suspended the showing of Ang Dating
Daanprogram for 20 days, in accordance with Section 3(d) of Presidential Decree
No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004
Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the
MTRCB Rules of Procedure. The same order also set the case for preliminary
investigation.
The following day, petitioner sought reconsideration of the preventive
suspension order, praying that Chairperson Consoliza P. Laguardia and two other
members of the adjudication board recuse themselves from hearing the case. Two
days after, however, petitioner sought to withdraw his motion for reconsideration,
followed by the filing with this Court of a petition for certiorari and
prohibition, docketed as G.R. No. 164785, to nullify the preventive suspension
order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a
decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision
is hereby rendered, finding respondent Soriano liable for his
utterances and thereby imposing on him a penalty of three (3)
months suspension from his program, Ang Dating Daan.
Co-respondents Joselito Mallari, Luzviminda Cruz and
UNTV Channel 37 and its owner, PBC, are hereby exonerated
for lack of evidence.
Petitioner then filed this petition for certiorari and
prohibition with prayer for injunctive relief, docketed as G.R. No.
165636.
In a Resolution dated April 4, 2005, the Court consolidated G.R. No.
164785 with G.R. No. 165636.
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ISSUE:
Whether or not the order or preventive suspension promulgated
by the respondent (MTRCB) against the television program ‘Ang
Dating Daan’ is null and void for being issued with grave abuse
of discretion amounting to lack or excess of jurisdiction for being
violative of freedom of speech and expression.
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS
PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT
OR IN EXCESS OF JURISDICTION x x x CONSIDERING
THAT:
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SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,
UNDULY INFRINGES ON THE CONSTITUTIONAL
GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND
EXPRESSION AS IT PARTAKES OF THE NATURE OF A
SUBSEQUENT PUNISHMENT CURTAILING THE SAME;
CONSEQUENTLY, THE IMPLEMENTING RULES AND
REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL
ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION
DATED 27 SEPTEMBER 2004 AND ORDER DATED 19
OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE CASE AT BENCH;
RULING:
NO. The Court finds that petitioners statement can be treated as
obscene, at least with respect to the average child. Hence, it is, in that context,
unprotected speech. In Fernando v. Court of Appeals, the Court expressed
difficulty in formulating a definition of obscenity that would apply to all cases, but
nonetheless stated the ensuing observations on the matter:
There is no perfect definition of obscenity but the latest
word is that of Miller v. California which established basic
guidelines, to wit: (a) whether to the average person, applying
contemporary standards would find the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and (c) whether
the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a serious misreading

of Miller to conclude that the trier of facts has the unbridled
discretion in determining what is patently offensive. x x x What
remains clear is that obscenity is an issue proper for judicial
determination and should be treated on a case to case basis and
on the judges sound discretion.
Following the contextual lessons of the cited case of Miller v. California, a
patently offensive utterance would come within the pale of the
term obscenity should it appeal to the prurient interest of an average listener
applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of
the case reveal that to an average adult, the utterances Gago ka talaga x x x,
masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not
constitute obscene but merely indecent utterances. They can be viewed as figures
of speech or merely a play on words. In the context they were used, they may not
appeal to the prurient interests of an adult. The problem with the challenged
statements is that they were uttered in a TV program that is rated G or for general
viewership, and in a time slot that would likely reach even the eyes and ears of
children.
While adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same
discernment. Without parental guidance, the unbridled use of such language as
that of petitioner in a television broadcast could corrupt impressionable young
minds. The term putang babae means a female prostitute, a term wholly
inappropriate for children, who could look it up in a dictionary and just get the
literal meaning, missing the context within which it was used.Petitioner further
used the terms, ang gumagana lang doon yung ibaba, making reference to the
female sexual organ and how a female prostitute uses it in her trade, then stating
that Sandoval was worse than that by using his mouth in a similar
manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be
inquisitive as to why Sandoval is different from a female prostitute and the
reasons for the dissimilarity. And upon learning the meanings of the words used,
young minds, without the guidance of an adult, may, from their end, view this kind
of indecent speech as obscene, if they take these words literally and use them in
their own speech or form their own ideas on the matter. In this particular case,
where children had the opportunity to hear petitioners words, when speaking of
the average person in the test for obscenity, we are speaking of the average
child, not the average adult. The average child may not have the adults grasp of
figures of speech, and may lack the understanding that language may be colorful,
and words may convey more than the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual organ and its function as such. In
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this sense, we find petitioners utterances obscene and not entitled to protection
under the umbrella of freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily
accessible to children. With respect to the young minds, said utterances are to be
treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But
while a jurisprudential pattern involving certain offensive utterances conveyed in
different mediums has emerged, this case is veritably one of first impression, it
being the first time that indecent speech communicated via television and the
applicable norm for its regulation are, in this jurisdiction, made the focal
point. Federal Communications Commission (FCC) v. Pacifica Foundation, a
1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans,
Jr. and Chavez v. Gonzales, is a rich source of persuasive lessons. Foremost of
these relates to indecent speech without prurient appeal component coming under
the category of protected speech depending on the context within which it was
made, irresistibly suggesting that, within a particular context, such indecent speech
may validly be categorized as unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered filthy words earlier recorded in a
monologue by a satiric humorist later aired in the afternoon over a radio station
owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-
recorded monologue while driving with his son, FCC declared the language used
as patently offensiveand indecent under a prohibiting law, though not
necessarily obscene. FCC added, however, that its declaratory order was issued
in a special factual context, referring, in gist, to an afternoon radio broadcast when
children were undoubtedly in the audience. Acting on the question of whether the
FCC could regulate the subject utterance, the US Supreme Court ruled in the
affirmative, owing to two special features of the broadcast medium, to wit: (1) radio
is a pervasive medium and (2) broadcasting is uniquely accessible to children.
The US Court, however, hastened to add that the monologue would be protected
speech in other contexts, albeit it did not expound and identify a compelling state
interest in putting FCCs content-based regulatory action under scrutiny.
The Court in Chavez elucidated on the distinction between regulation or restriction
of protected speech that is content-based and that which is content-neutral. A
content-based restraint is aimed at the contents or idea of the expression, whereas
a content-neutral restraint intends to regulate the time, place, and manner of the
expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject
content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the
premises was, in one perspective, permissible restriction. We make this disposition

against the backdrop of the following interplaying factors: First, the indecent
speech was made via television, a pervasive medium that, to borrow
from Gonzales v.
Despite the settled ruling in FCC which has remained undisturbed since 1978,
petitioner asserts that his utterances must present a clear and present danger of
bringing about a substantive evil the State has a right and duty to prevent and such
danger must be grave and imminent.
Petitioners invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of
said test is uncalled for under the premises. The doctrine, first formulated by
Justice Holmes, accords protection for utterances so that the printed or spoken
words may not be subject to prior restraint or subsequent punishment unless its
expression creates a clear and present danger of bringing about a substantial evil
which the government has the power to prohibit. Under the doctrine, freedom of
speech and of press is susceptible of restriction when and only when necessary to
prevent grave and immediate danger to interests which the government may
lawfully protect. As it were, said doctrine evolved in the context of prosecutions for
rebellion and other crimes involving the overthrow of government. It was originally
designed to determine the latitude which should be given to speech that espouses
anti-government action, or to have serious and substantial deleterious
consequences on the security and public order of the community. The clear and
present danger rule has been applied to this jurisdiction. As a standard of limitation
on free speech and press, however, the clear and present danger test is not a
magic incantation that wipes out all problems and does away with analysis and
judgment in the testing of the legitimacy of claims to free speech and which
compels a court to release a defendant from liability the moment the doctrine is
invoked, absent proof of imminent catastrophic disaster. As we observed
in Eastern Broadcasting Corporation, the clear and present danger test does not
lend itself to a simplistic and all embracing interpretation applicable to all
utterances in all forums.
Since not all evils can be measured in terms of proximity and degree the Court,
however, in several cases Ayer Productions v. Capulong and Gonzales v.
COMELEC, applied the balancing of interests test. Former Chief Justice Fred Ruiz
Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where
the legislation under constitutional attack interferes with the freedom of speech and
assembly in a more generalized way and where the effect of the speech and
assembly in terms of the probability of realization of a specific danger is not
susceptible even of impressionistic calculation, then the balancing of interests test
can be applied.
This balancing of interest test, to borrow from Professor Kauper, rests on the
theory that it is the courts function in a case before it when it finds public interests
served by legislation, on the one hand, and the free expression clause affected by
it, on the other, to balance one against the other and arrive at a judgment where
the greater weight shall be placed. If, on balance, it appears that the public interest
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served by restrictive legislation is of such nature that it outweighs the abridgment
of freedom, then the court will find the legislation valid. In short, the balance-of-
interests theory rests on the basis that constitutional freedoms are not absolute,
not even those stated in the free speech and expression clause, and that they may
be abridged to some extent to serve appropriate and important interests. To the
mind of the Court, the balancing of interest doctrine is the more appropriate test to
follow.
No doubt, one of the fundamental and most vital rights granted to citizens of a
State is the freedom of speech or expression, for without the enjoyment of such
right, a free, stable, effective, and progressive democratic state would be difficult
to attain. Arrayed against the freedom of speech is the right of the youth to their
moral, spiritual, intellectual, and social being which the State is constitutionally
tasked to promote and protect. Moreover, the State is also mandated to recognize
and support the vital role of the youth in nation building as laid down in Sec. 13,
Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility
on the State to provide protection to the youth against illegal or improper activities
which may prejudice their general well-being. The Article on youth, approved on
second reading by the Constitutional Commission, explained that the State shall
extend social protection to minors against all forms of neglect, cruelty,
exploitation, immorality, and practices which may foster racial, religious or other
forms of discrimination.
Indisputably, the State has a compelling interest in extending social protection to
minors against all forms of neglect, exploitation, and immorality which may pollute
innocent minds. It has a compelling interest in helping parents, through regulatory
mechanisms, protect their children’s minds from exposure to undesirable materials
and corrupting experiences. The Constitution, no less, in fact enjoins the State, as
earlier indicated, to promote and protect the physical, moral, spiritual, intellectual,
and social well-being of the youth to better prepare them fulfill their role in the field
of nation-building. In the same way, the State is mandated to support parents in
the rearing of the youth for civic efficiency and the development of moral character.
Petitioners offensive and obscene language uttered in a television broadcast,
without doubt, was easily accessible to the children. His statements could have
exposed children to a language that is unacceptable in everyday use. As such, the
welfare of children and the States mandate to protect and care for them, as parens
patriae, constitute a substantial and compelling government interest in regulating
petitioners utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the
children who, because of age or interest capacity, are susceptible of being
corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too
young to read. Although Cohens written message, [Fuck the
Draft], might have been incomprehensible to a first
grader, Pacificas broadcast could have enlarged a childs
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 that the governments 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.
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the
restraint on the TV broadcast grounded on the following considerations: (1) the use
of television with its unique accessibility to children, as a medium of broadcast of
a patently offensive speech; (2) the time of broadcast; and (3) the G rating of
the Ang Dating Daan program.
There can be no quibbling that the remarks in question petitioner uttered on prime-
time television are blatantly indecent if not outright obscene. It is the kind of speech
that PD 1986 proscribes necessitating the exercise by MTRCB of statutory
disciplinary powers. It is the kind of speech that the State has the inherent
prerogative, nay duty, to regulate and prevent should such action served and
further compelling state interests. One who utters indecent, insulting, or offensive
words on television when unsuspecting children are in the audience is, in the
graphic language of FCC, a pig in the parlor. Public interest would be served if the
pig is reasonably restrained or even removed from the parlor.
Ergo, petitioners offensive and indecent language can be subjected to prior
restraint.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner
is an administrative sanction or subsequent punishment for his offensive and
obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to
prior restraint are movies, television, and radio broadcast censorship in view of its
access to numerous people, including the young who must be insulated from the
prejudicial effects of unprotected speech. PD 1986 was passed creating the Board
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of Review for Motion Pictures and Television (now MTRCB) and which requires
prior permit or license before showing a motion picture or broadcasting a TV
program. The Board can classify movies and television programs and can cancel
permits for exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio
and television shows, even religious programs, was upheld in Iglesia Ni Cristo v.
Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court
wrote:
We thus reject petitioners postulate that its religious program
is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the
bosom of internal belief. Television is a medium that reaches
even the eyes and ears of children. The Court iterates the rule
that the exercise of religious freedom can be regulated by the
State when it will bring about the clear and present danger of
some substantive evil which the State is duty bound to prevent,
i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare. x x x
xxxx
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was
already issued to him by MTRCB for such broadcast. Rather, the suspension is in
the form of permissible administrative sanction or subsequent punishment for the
offensive and obscene remarks he uttered on the evening of August 10, 2004 in
his television program, Ang Dating Daan. It is a sanction that the MTRCB may
validly impose under its charter without running afoul of the free speech
clause. And the imposition is separate and distinct from the criminal action the
Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be
availed of by the aggrieved private party under the provisions on libel or tort, if
applicable. As FCC teaches, the imposition of sanctions on broadcasters who
indulge in profane or indecent broadcasting does not constitute forbidden
censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners
exercise of his freedom of speech via television, but for the indecent contents of
his utterances in a G rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment
of his freedom of speech to regulation under PD 1986 and its IRR as television
station owners, program producers, and hosts have impliedly accepted the power
of MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in
its proper perspective, the suspension is in the nature of an intermediate penalty

for uttering an unprotected form of speech. It is definitely a lesser punishment than
the permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement
and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time G
rated TV program; it does not bar future speech of petitioner in other television
programs; it is a permissible subsequent administrative sanction; it should not be
confused with a prior restraint on speech. While not on all fours, the Court,
in MTRCB,[66] sustained the power of the MTRCB to penalize a broadcast
company for exhibiting/airing a pre-taped TV episode without Board authorization
in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits
of its authority were it to regulate and even restrain the prime-time television
broadcast of indecent or obscene speech in a G rated program is not
acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom
accorded to newspaper and print media. The MTRCB, as a regulatory agency,
must have the wherewithal to enforce its mandate, which would not be effective if
its punitive actions would be limited to mere fines. Television broadcasts should be
subject to some form of regulation, considering the ease with which they can be
accessed, and violations of the regulations must be met with appropriate and
proportional disciplinary action. The suspension of a violating television program
would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioners television program is
justified, and does ot constitute prohibited prior restraint. It behooves the Court to
respond to the needs of the changing times, and craft jurisprudence to reflect these
times.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm
in which absolute permissiveness is the norm. Petitioners flawed belief that he may
simply utter gutter profanity on television without adverse consequences, under
the guise of free speech, does not lend itself to acceptance in this jurisdiction. We
repeat: freedoms of speech and expression are not absolute freedoms. To say any
act that restrains speech should be greeted with furrowed brows is not to say that
any act that restrains or regulates speech or expression is per se invalid. This only
recognizes the importance of freedoms of speech and expression, and indicates
the necessity to carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated
September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the
suspension to the program Ang Dating Daan. As thus modified, the fallo of the
MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision
is hereby rendered, imposing a penalty of THREE (3) MONTHS
7
SUSPENSION on the television program, Ang Dating Daan,
subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and
UNTV Channel 37 and its owner, PBC, are hereby exonerated
for lack of evidence.
3. New York Times v. US
Facts: In 1967 then Secretary of Defense Robert McNamara commissioned a
secret government study on American involvement in Vietnam. When completed
in 1968, the project comprised 47 volumes containing more than 7,000 pages. The
work was labeled classified, and only 15 copies were made.
In early 1971 Daniel Ellberg, a RAND Corporation employee who had worked on
the project, secretly made copies of the documents and passed them to reporters
for the New York Times. On June 13, 1971, after several months of review,
the Times began to publish these so-called “Pentagon Papers.”
After the first three installments were published, the Nixon administration, citing
national security concerns, obtained a restraining order barring further publication
of the Papers. When the Second Circuit Court of Appeals affirmed the order,
the Times made an emergency appeal to the Supreme Court, which agreed to
hear the case the next day (June 26). The Court issued its opinions on June 30; in
all, the entire legal process had taken only 15 days.
Because of the sensitive information contained in the study, the government feared
it would compromise relationships with other nations and claimed it posed a threat
to national security. The government claimed the publication violated the
Espionage Act and President Nixon ordered further publications halted. In a matter
of days, the case had reached the Supreme Court.
Issue: WoN Nixon administration's efforts to prevent the publication of what it
termed "classified information" violate the First Amendment?
Held: YES. New York Times v. United States, better known as the “Pentagon
Papers” case, was a decision expanding freedom of the press and limits on the
government's power to interrupt that freedom. President Richard Nixon used his
executive authority to prevent the New York Times from publishing top secret
documents pertaining to U.S. involvement in the Vietnam War. In a 6-3 decision,
the Court ruled that the President’s attempt to prevent the publication was a
violation of First Amendment protections for press freedom.
 8

The Court ruled that the intent of the publication was not to put the U.S. in danger
but to educate the American people about the Vietnam War. By preventing the
New York Times from publishing the material, the reporters' 1st Amendment rights Chaplinsky’s version of the facts:
were being violated. Many historians now credit the publishing of the “Pentagon
Chaplinsky testified that when he met Marshal Bowering, he asked the
Papers” with helping to end the Vietnam War.
latter to arrest those responsible for the disturbance. However, Bowering cursed
him and told him to come along. He admitted having said the words he was
accused to have uttered with the exception of the word Deity.
4. CHAPLINSKY vs. NEW HAMPSHIRE

Argued February 5, 1942. –Decided March 9, 1942

Issue:
Facts:
Whether the Chapter 378, Section 2 of the Public Laws of New Hampshire
Chaplinsky, a member of the sect known as Jehovah’s Witnesses and placed unreasonable restraint on freedom of speech and expression for being
the appellant in this case, was convicted in the municipal court of New Hampshire vague and indefinite.
for the violation of the said state’s Public Laws, specifically the Chapter 378 Section
2, which states that:

“No person shall address any offensive, derisive, or annoying word to any Held:
other person who is lawfully in any street or other public place, nor call
No, it does not place unreasonable restraint on the said rights.
him by any offensive or derisive name, nor make any 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 Court is unable to say that the limited scope of the statute
contravened the Constitutional right of free expression. The right of free speech is
not absolute at all times and under all circumstances. Lewd and obscene, the
He was said to have addressed the complainant with force and arms, in
profane, the libelous, and the insulting or “fighting” words and utterances which
a certain public place in the City of Rochester on the public sidewalk on the easterly
inflict injury or tend to incite immediate breach of peace are no essential part of
side of Wakefield Street, saying “You are a God damned racketeer” and “a damned
any exposition of ideas, and are therefore not under the cloak of immunity.
Fascist and the whole government of Rochester are Fascists or agents of Fascists,
and those were said to be offensive, derisive, and are annoying words or names.

Chaplinsky’s utterances about religion do not belong to the scope of

freedom of expression or speech. They were lewd and obscene words, and not to
Chaplinsky was found guilty and the judgment of conviction was affirmed
mention libelous and insulting to some religions. The words “damned racketeer”
by the Supreme Court of the State, which made him raise questions regarding its
and “damned Fascist” are epithets which are likely to provoke the average person
validity.
to retaliate and is counted as a breach of speech on his part.

Witnesses’ version of the facts:

The members of local citizenry complained to the City Marshal, Bowering,
that Chaplinsky was denouncing all religion as a “racket.” Marshal Bowering told
the citizens that Chaplinsky was lawfully engaged and warned the latter that the
crowd was getting restless. A disturbance took place later on and the traffic officer
on duty started to bring Chaplinsky to the police station, though he was not
informed that he was under arrest or was about to be arrested. They later
encountered Bowering who repeated his warning.
Additionally, the statute is narrowly drawn and limited to define and punish
specific conduct, which disposes Chaplinsky’s contention that it is vague and
indefinite. It is a statute that punishes verbal acts, which is carefully drawn so as
not unduly to impair liberty of expression, and is not too vague for a criminal law.
5. UNITED STATES VS ALVAREZ

Facts:
On July 23, 2007, Xavier Alvarez, a member of the Three Valleys Water District
Board of Directors, attended a joint meeting with the Walnut Valley Water District
Board of Directors at the Board's headquarters. Mr. Alvarez was invited to speak
about his background, and he stated, "I'm a retired marine of 25 years. I retired in
the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor."
In fact, Mr. Alvarez had not received the Congressional Medal of Honor, nor any
other military medal or decoration. He had also had never served in the United
States Armed Forces.
The Stolen Valor Act of 2005 makes it a crime to falsely claim receipt of military
decorations or medals. On September 26, 2007, Mr. Alvarez was charged in the
Central District of California with two counts of falsely representing that he had
been awarded the Congressional Medal of Honor in violation the Stolen Valor Act
of 2005. Mr. Alvarez moved to dismiss on the grounds that the statute violated his
first amendment right to free speech. The district court denied Alvarez's motion to
dismiss. The respondent thereafter pleaded guilty, but reserved his right to appeal.
Alvarez appealed to the U.S. Court of Appeals for the Ninth Circuit, and the court
reversed and remanded the lower court's decision. It reasoned that the Supreme
Court had never held that the government may prohibit speech simply because it
is knowingly false and that some knowingly false speech could have affirmative
constitutional value. The court of appeals denied the government's request for
rehearing. Thereafter, the government appealed the court of appeals' decision.
Issue:
Whether or not 18 U.S.C. 704(b), the Stolen Valor Act, violate the Free Speech
Clause of the First Amendment?
Ruling:
Justice Kennedy's plurality opinion concluded that the Stolen Valor Act seeks to
restrict speech based on its content. Generally, it is unconstitutional to restrict
speech based on its message, ideas, subject, or content. Because the law sought
to restrict content, the opinion concluded that it had to be analyzed under the “strict
scrutiny” standard, which is the most rigorous First Amendment standard. To
survive this standard, the government must show that the law is narrowly tailored
and is the least restrictive means of meeting a compelling government need.
After conducting an extensive historical review of First Amendment cases, the
plurality concluded that historically, content-based restrictions on speech have
been permitted only for a few categories of speech, such as incitement, obscenity,
defamation, child pornography, fraud, true threats, and speech integral to criminal
conduct. There is no “general exception to the First Amendment for false
statements,” Justice Kennedy wrote. He acknowledged that many laws punish or
criminalize false statements, but they traditionally criminalize false statements that
9
cause some definite and identifiable harm. This was not the case with the Stolen
Valor Act. According to the plurality, “for all the record shows, respondent's
statements were but a pathetic attempt to gain respect that eluded him. . . . The
statements do not seem to have been made to secure employment or financial
benefits or privileges reserved for actual recipients of the medal” In this regard, the
case was different from prior First Amendment cases on false statements in that it
“targets falsity and nothing more.”
Justice Kennedy said that false statements are not, solely because they are false,
excluded from First Amendment protection. He said that the law, as written, would
criminalize any false speech, even “personal, whispered conversations within a
home” and this was granting the government too much power.
The statute seeks to control and suppress all false statements on this one subject
in almost limitless times and settings. And it does so entirely without regard to
whether the lie was made for the purpose of material gain. Permitting the
government to decree this speech to be a criminal offense, whether shouted from
the rooftops or made in a barely audible whisper would endorse government
authority to compile a list of subjects about which false statements are punishable.
That governmental power has no clear limiting principal.
Justice Kennedy acknowledged the government's interest in protecting the integrity
of the Medal of Honor. But he said the First Amendment requires a showing of a
direct causal link between the restriction imposed and the injury to be prevented,
and the government had produced no evidence to show that criminalizing false
claims such as those made by Alvarez was necessary to protect the public's
esteem for military honors. And the government could not show why
“counterspeech,” such as the ridicule Alvarez received online and in the press,
would not suffice to achieve its interest. “The facts of this case indicate that the
dynamics of free speech, of counterspeech, of refutation can overcome the lie”
wrote Justice Kennedy. “Indeed, the outrage and contempt expressed for
respondent's lies can serve to reawaken and reinforce the public's respect for the
Medal, its recipients, and its high purpose. The plurality concluded that if the Stolen
Valor Act was upheld, it would “give government broad censorial power
unprecedented in the Court's cases or in our constitutional tradition.”
Justice Kennedy also said that when the government seeks to regulate protected
speech, it must use the “the least restrictive means among available, effective
alternatives.” He said the government could likely protect the integrity of the military
awards system by creating a database of medal winners accessible and
searchable on the Internet.
6. Imbong v. Ochoa

Facts:
On Dec 21 2012, Congress enacted the Responsible Parenthood and
Reproductive Health Act of 2012 (RH Law) as a response to the exponential rise
in the population. Shortly after the President signed it into law, challengers from
different sectors of society sought to strike down the said law. The 14 petitioners
and 2 petitioners-in-intervention assail the constitutionality of the law on the
following grounds (included only the issue relevant to freedom of expression)
The law mandates that a full range of modern family planning method should be
accessible to people, but if a skilled professional, or a hospital owned by a religious
organization is a conscientious objector to family planning due to their religious
beliefs, they should instead refer the person seeking such care and services to
another health facility which is conveniently accessible. RH law provides:
Section 7. Access to Family Planning. – All accredited public health
facilities shall provide a full range of modern family planning methods,
which shall also include medical consultations, supplies and necessary
and reasonable procedures for poor and marginalized couples having
infertility issues who desire to have children: Provided, That family
planning services shall likewise be extended by private health facilities to
paying patients with the option to grant free care and services to
indigents, except in the case of non-maternity specialty hospitals and
hospitals owned and operated by a religious group, but they have
the option to provide such full range of modern family planning
methods: Provided, further, That these hospitals shall immediately
refer the person seeking such care and services to another health
facility which is conveniently accessible: Provided, finally, That the
person is not in an emergency condition or serious case as defined in
Republic Act No. 8344.
Section 23. Prohibited Acts. – The following acts are prohibited:
xxx
(3) Refuse to extend quality health care services and information on
account of the person’s marital status, gender, age, religious convictions,
personal circumstances, or nature of work: Provided, That the
conscientious objection of a health care service provider based on
his/her ethical or religious beliefs shall be respected; however, the
conscientious objector shall immediately refer the person seeking
such care and services to another health care service provider
within the same facility or one which is conveniently accessible:
10
Provided, further, That the person is not in an emergency condition or
serious case as defined in Republic Act No. 8344, which penalizes the
refusal of hospitals and medical clinics to administer appropriate initial
medical treatment and support in emergency and serious cases;
It is alleged that the RH Law violates the right to free speech. To compel a person
to explain a full range of family planning methods is plainly to curtail his right to
expound only his own preferred way of family planning. The petitioners note that
although exemption is granted to institutions owned and operated by religious
groups, they are still forced to refer their patients to another healthcare facility
willing to perform the service or procedure. They contend that this referral amounts
to requiring the conscientious objector to cooperate with the very thing he refuses
to do
Issue:
Whether or not the RH law is violative of Freedom of Expression when it compels
the conscientious objectors to still refer the patient to another when family planning
is actually against his beliefs
Ruling:
The court held that YES, it is a violation of freedom of expression.
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and
24(penalty) thereof. The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious
objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with the
Court's espousal of the Doctrine of Benevolent Neutrality in the case of Escritor,
finds application. In this case, the conscientious objector's claim to religious
freedom would warrant an exemption from obligations under the RH Law, unless
the government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than
strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to
religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty. The scenario is
an illustration of the predicament of medical practitioners whose religious beliefs
are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates
the religious belief and conviction of a conscientious objector. Once the medical
practitioner, against his will, refers a patient seeking information on modem
reproductive health products, services, procedures and methods, his conscience
is immediately burdened as he has been compelled to perform an act against his
beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written,
"at the basis of the free exercise clause is the respect for the inviolability of the
human conscience.
Though it has been said that the act of referral is an opt-out clause, it is, however,
a false compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They cannot,
in conscience, do indirectly what they cannot do directly. One may not be the
principal, but he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the
right to free speech, it being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind. While the RH Law seeks
to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's religion.
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to provide
access and information on reproductive health products, services, procedures and
methods to enable the people to determine the timing, number and spacing of the
birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy.
Accordingly, a conscientious objector should be exempt from compliance with the
mandates of the RH Law. If he would be compelled to act contrary to his religious
belief and conviction, it would be violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise of religion.
11
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health
Board, that the midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be required to delegate,
supervise or support staff on their labor ward who were involved in abortions. The
Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."
While the said case did not cover the act of referral, the applicable principle was
the same - they could not be forced to assist abortions if it would be against their
conscience or will.
Accordingly, the Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL
except with respect to Sections 7, 23, among others, which are declared
UNCONSTITUTIONAL
On the issue of ACADEMIC FREEDOM
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the principle
of academic freedom . According to the petitioners, these provisions effectively
force educational institutions to teach reproductive health education even if they
believe that the same is not suitable to be taught to their students. Citing various
studies conducted in the United States and statistical data gathered in the
country, the petitioners aver that the prevalence of contraceptives has led to an
increase of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of
society; and promotion of promiscuity among the youth.
At this point, suffice it to state that any attack on the validity of Section 14 of the
RH Law is premature because the Department of Education, Culture and Sports
has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their apprehensions.
Thus, considering the premature nature of this particular issue, the Court
declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and development of moral character shall receive the support of the
Government. Like the 1973 Constitution and the 1935 Constitution, the 1987

Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places
more importance on the role of parents in the development of their children by
recognizing that said role shall be "primary," that is, that the right of parents in
upbringing the youth is superior to that of the State.
It is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. Indeed, the Constitution makes mention of
the importance of developing the youth and their important role in nation
building. Considering that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the development of
knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence
and teen pregnancy; physical, social and emotional changes in adolescents;
women's rights and children's rights; responsible teenage behavior; gender and
development; and responsible parenthood, and that Rule 10, Section 11.01 of the
RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional
changes among adolescents - the Court finds that the legal mandate provided
under the assailed provision supplements, rather than supplants, the rights and
duties of the parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-teacher-
community associations, school officials and other interest groups, it could very
well be said that it will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the petitioners' contention
that Section 14 violates Article XV, Section 3(1) of the Constitution is without
merit.
While the Court notes the possibility that educators might raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.
B. Libel
7. New York Times Company v. Sullivan
Doctrine: To sustain a claim of defamation or libel, the First Amendment requires
that the plaintiff show that the defendant knew that a statement was false or was
reckless in deciding to publish the information without investigating whether it was
accurate.
Facts:
12
During the Civil Rights movement of the 1960s, the New York Times published a
full-page ad for contributing donations to defend Martin Luther King, Jr. on perjury
charges. The ad contained several minor factual inaccuracies, such as the number
of times that King had been arrested and actions taken by the Montgomery,
Alabama police. The city Public Safety Commissioner, L.B. Sullivan, felt that the
criticism of his subordinates reflected on him, even though he was not mentioned
in the ad. Sullivan sent a written request to the Times to publicly retract the
information, as required for a public figure to seek punitive damages in a libel action
under Alabama law.
When the Times refused and claimed that they were puzzled by the request,
Sullivan filed a libel action against the Times and a group of African American
ministers mentioned in the ad. A jury in state court awarded him $500,000 in
damages. The state supreme court affirmed, and the Times appealed.
Issue: Whether or not Sullivan’s libel claim can be sustained.
Ruling:
No, as the Court ruled for the Times. The First Amendment did not permit a finding
of liability by Alabama courts in this context, especially considering the modest
evidence that had been presented. When a statement concerns a public figure, it
is not enough to show that it is false for the press to be liable for libel. Instead, the
target of the statement must show that it was made with knowledge of or reckless
disregard for its falsity. The term "actual malice" was used to summarize this
standard, although he did not intend the usual meaning of a malicious purpose.
"Malice" had a long-standing meaning within libel law that limited it to knowledge
or gross recklessness rather than intent, since courts found it difficult to imagine
that someone would knowingly disseminate false information without a bad intent.
However, it previously had been used only to determine whether enhanced
penalties, such as punitive damages, should be awarded.
To sustain a claim of defamation or libel, the First Amendment requires that the
plaintiff show that the defendant knew that a statement was false or was reckless
in deciding to publish the information without investigating whether it was accurate.
8. ROSENBLOOM VS. METROMEDIA, INC.
403 U.S. 29 December 8, 1970 BRENNAN, J.,
This case was responsible for establishing the idea that the knowingly
and recklessly false standard for defamatory statements should apply to private
individuals as well as public officials. Concluding that the story was a matter of
public concern the Supreme Court ruled that it did not matter that Rosenbloom
was a private citizen; however, the evidence provided in the case did not support

the damages awarded to Rosenbloom. The decision was made June 7, 1971
with a 5-3 decision
Facts:
George Rosenbloom distributed nudist magazines in the Philadelphia area.
Police arrested him at his home on obscenity charges and seized several of the
magazines. A local news broadcast, run by
Metromedia, Inc., reported on the arrest, but failed to use the words “allegedly” or
“reportedly” in during one broadcast. In subsequent broadcasts, the reporters
called Rosenbloom and other similar distributors “girlie look peddlers” and “smut
distributors”. Eventually, Rosenbloom was acquitted on the obscenity charges.
Rosenbloom then sued Metromedia for libel. The district court held that the First
Amendment standard, which allowed recovery of damages only for knowingly
and recklessly false statements, did not apply because Rosenbloom was not a
public official or figure. The court instead instructed the jury to award damages
where Metromedia did not use reasonable care to discern the truth before
broadcasting. The jury awarded Rosenbloom general and punitive damages,
although the district court reduced the punitive damages. The U.S. Court of
Appeals for the Third Circuit reversed, holding that the knowingly and recklessly
false standard applied.
Issue:
Whether the New York Times' knowing-or-reckless-falsity standard applies in a
state civil libel action brought not by a "public official" or a "public figure" but by a
private individual for a defamatory falsehood uttered in a news broadcast by a
radio station about the individual's involvement in an event of public or general
interest.
Ruling:
The actual malice standard applies.
If a matter is a subject of public or general interest, it cannot suddenly become
less so merely because a private individual is involved, or because in some
sense the individual did not "voluntarily" choose to become involved.
13
The public's primary interest is in the event; the public focus is on the conduct of
the participant and the content, effect, and significance of the conduct, not the
participant's prior anonymity or notoriety. The present case illustrates the point.
The community has a vital interest in the proper enforcement of its criminal laws,
particularly in an area such as obscenity where a number of highly important
values are potentially in conflict: the public has an interest both in seeing that the
criminal law is adequately enforced and in assuring that the law is not used
unconstitutionally to suppress free expression. Whether the person involved is a
famous large-scale magazine distributor or a "private" businessman running a
corner newsstand has no relevance in ascertaining whether the public has an
interest in the issue. We honor the commitment to robust debate on public
issues, which is embodied in the First Amendment, by extending constitutional
protection to all discussion and communication involving matters of public or
general concern, without regard to whether the persons involved are famous or
anonymous.
9. AYER PRODUCTIONS PTY. LTD. V HON.IGNACIO M. CAPULONG
G.R. No. 82380
FACTS:
Petitioner Hal McElroy an Australian film maker, and his movie production
company, Petitioner Ayer Productions Ltd. (Ayer Productions), envisioned,
sometime in 1987, the for commercial viewing and for Philippine and international
release, the historic peaceful struggle of the Filipinos at EDSA. Petitioners
discussed this Project with local movie producer who suggested 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 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. The proposed motion picture would be essentially a re-
enactment 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.
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. Enrile then filed a
complaint and with application for TRO alleging 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. Petitioner raised the defense that a
preliminary injunction would amount to a prior restraint on their right of free
expression. The trial court then issued a writ of Preliminary Injunction against the
petitioners ordering the defendants to cease and desist from making the film.
Hence, a petition for certiorari was filed by the petitioner. The respondent Enrile’s
defense was the film would intrude his right to privacy while petitioner claims they
are exercising their freedom of speech and of expression protected under our
Constitution.
ISSUE:
Whether or not the right to privacy of Enrile will be violated by the
production of the film.
RULING:
NO. 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 universally utilized
vehicle of communication and medium Of expression. 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.
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. It is left to case law,
however, to mark out the precise scope and content of this right in differing types
14
of particular situations. The right of privacy or "the right to be let alone, 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 a public character.
The Four Day Revolution" does not, in the circumstances of this case, constitute
an unlawful intrusion upon private respondent's "right of privacy."
1. 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. 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 country
and 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.
3. The extent of the intrusion 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.
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.' 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. Private respondent is a "public figure" precisely because, inter
alia, of his participation as a principal actor in the culminating events of
the change of government in February 1986. Because his participation
therein was major in character, a film reenactment of the peaceful
revolution that fails to make reference to the role played by private
respondent would be grossly unhistorical. The right of privacy of a "public
figure" is necessarily narrower than that of an ordinary citizen. Private
respondent has not retired into the seclusion of simple private citizenship.
he continues to be a "public figure.
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. 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. The proposed motion picture should not
enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to
as "matters of essentially private concern." 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.
10. BARTNICKI v. VOPPER
During contentious collective-bargaining negotiations between a union
representing teachers at a Pennsylvania high school and the local school board,
an unidentified person intercepted and recorded a cell phone conversation
between the chief union negotiator and the union president (hereinafter
petitioners).
After the parties accepted a nonbinding arbitration proposal generally favorable to
the teachers, respondent Vopper, a radio commentator, played a tape of the
intercepted conversation on his public affairs talk show in connection with news
reports about the settlement. Petitioners filed damages suit under both federal and
state wiretapping laws, alleging, among other things, that their conversation had
been surreptitiously intercepted by an unknown person; that respondent Yocum,
the head of a local organization opposed to the
15
union’s demands, had obtained the tape and intentionally disclosed it to media
representatives; and that they had repeatedly published the conversation even
though they knew or had reason to know that it had been illegally intercepted.
These cases raise an important question concerning what degree of protection, if
any, the First Amendment provides to speech that discloses the contents of an
illegally intercepted communication. The suit at hand involves the repeated
intentional disclosure of an illegally intercepted cellular telephone conversation
about a public issue. The persons who made the disclosures did not participate
in the interception, but they did know—or at least had reason to know—that the
interception was unlawful.
Accordingly, these cases present a conflict between interests of the highest
order—on the one hand, the interest in the full and free dissemination of
information concerning public issues, and, on the other hand, the interest in
individual privacy and, more specifically, in fostering private speech.
The disclosures made by respondents in this suit are protected by the First
Amendment (guarantees freedom of expression by prohibiting Congress from
restring the press or the right of individuals to speak freely).
Facts:
During 1992 and most of 1993, the Pennsylvania State Education Association, a
union representing the teachers at the Wyoming Valley West High School,
engaged in collective-bargaining negotiations with the school board. Petitioner
Kane, then the president of the local union, testified that the negotiations were
“contentious” and received “a lot of media attention.”
In May 1993, petitioner Bartnicki, who was acting as the union’s “chief negotiator,”
used the cellular phone in her car to call Kane and engage in a lengthy
conversation about the status of the negotiations. An unidentified person
intercepted and recorded that call. In their conversation, Kane and Bartnicki
discussed the timing of a proposed strike, difficulties created by public comment
on the negotiations, and the need for a dramatic response to the board’s
intransigence. At one point, Kane said: “If they’re not gonna move for three percent,
we’re gonna have to go to their, their homes . . . . To blow off their front porches,
we’ll have to do some work on some of those guys. (PAUSES). Really, uh, really
and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE).”

In the early fall of 1993, the parties accepted a nonbinding arbitration proposal that
was generally favorable to the teachers. In connection with news reports about the
settlement, respondent Vopper, a radio commentator who had been critical of the
union in the past, played a tape of the intercepted conversation on his public affairs
talk show.
Another station also broadcast the tape, and local newspapers published its
contents. After filing suit against Vopper and other representatives of the media,
Bartnicki and Kane (hereinafter petitioners) learned through discovery that Vopper
had obtained the tape from respondent Jack Yocum, the head of a local taxpayers’
organization that had opposed the union’s demands throughout the negotiations.
Yocum, who was added as a defendant, testified that he had found the tape in his
mailbox shortly after the interception and recognized the voices of Bartnicki and
Kane. Yocum played the tape for some members of the school board, and later
delivered the tape itself to Vopper.
In their amended complaint, petitioners alleged that their telephone conversation
had been surreptitiously intercepted by an unknown person using an electronic
device, that Yocum had obtained a tape of that conversation, and that he
intentionally disclosed it to Vopper, as well as other individuals and media
representatives. Thereafter, Vopper and other members of the media repeatedly
published the contents of that conversation. The amended complaint alleged that
each of the defendants “knew or had reason to know” that the recording of the
private telephone conversation had been obtained by means of an illegal
interception.
Respondents contended that they had not violated the statute because (a) they
had nothing to do with the interception, and (b) in any event, their actions were not
unlawful since the conversation might have been intercepted inadvertently.
Moreover, even if they had violated the statute by disclosing the intercepted
conversation, respondents argued, those disclosures were protected by the First
Amendment (guarantees freedom of expression by prohibiting Congress from
restring the press or the right of individuals to speak freely).
Issue:
Whether the disclosure by the media of illegally obtained communication by third
party is protected by the First Amendment.
16
Ruling:
YES. Parallel reasoning requires the conclusion that a stranger’s illegal conduct
does not suffice to remove the First Amendment shield from speech about a matter
of public concern. The months of negotiations over the proper level of
compensation for teachers at the Wyoming Valley West High School were
unquestionably a matter of public concern, and respondents were clearly engaged
in debate about that concern. Further, it has repeatedly held that “if a newspaper
lawfully obtains truthful information about a matter of public significance then state
officials may not constitutionally punish publication of the information, absent a
need . . . of the highest order.”
Respondents’ submission was accepted on three factual matters that serve to
distinguish most of the cases that have arisen under § 2511. First, respondents
played no part in the illegal interception. Rather, they found out about the
interception only after it occurred, and in fact never learned the identity of the
person or persons who made the interception. Second, their access to the
information on the tapes was obtained lawfully, even though the information itself
was intercepted unlawfully by someone else. Third, the subject matter of the
conversation was a matter of public concern. If the statements about the labor
negotiations had been made in a public arena—during a bargaining session, for
example—they would have been newsworthy. This would also be true if a third
party had inadvertently overheard Bartnicki making the same statements to Kane
when the two thought they were alone.
Accordingly, in New York Times Co. v. United States, the Court upheld the right of
the press to publish information of great public concern obtained from documents
stolen by a third party. In so doing, that decision resolved a conflict between the
basic rule against prior restraints on publication and the interest in preserving the
secrecy of information that, if disclosed, might seriously impair the security of the
Nation.
There is no need to decide whether that interest is strong enough to justify the
application of § 2511(c) to disclosures of trade secrets or domestic gossip or other
information of purely private concern. In these cases, privacy concerns give way
when balanced against the interest in publishing matters of public importance. As
Warren and Brandeis stated in their classic law review article: “The right of privacy
does not prohibit any publication of matter which is of public or general interest.”
One of the costs associated with participation in public affairs is an attendant loss
of privacy.

New York Times Co. v. Sullivan, reviewed many of the decisions that settled the
“general proposition that freedom of expression upon public questions is secured
by the First Amendment.” Those cases all relied on our “profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open.”
C. Obscenity
11. Miller v. California
413 U.S. 15 (1973)
Obscene material is not protected by the First Amendment and 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"; as well as hold that obscenity is to be determined by applying
"contemporary community standards," not "national standards."
Facts:
Miller 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, 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.
17
Issue:
Whether or not obscenity is within the area of the constitutional right to
freedom of speech and press.
Ruling:
The Supreme Court held that NO, it has been categorically settled by the
Court, that obscene material is unprotected by the First Amendment. This case
involves the application of a State's criminal obscenity statute to a situation in which
sexually explicit materials have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated any desire to receive such
materials. The 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.
The Court, being called upon to render standards which must be used to
identify obscene materials, cited discussed two landmark cases:
1. Roth v. United States, wherein 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.
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.. . .' hence, obscenity is not within
the area of constitutionally protected speech and press.
2. In Memoirs v. Massachusetts, 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."
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. But now the Memoirs test has
been abandoned as unworkable by its author.
The Court acknowledges the inherent dangers of undertaking to regulate
any form of expression. State statutes designed to regulate obscene materials
must be carefully limited.
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. People in
different States vary in their tastes and attitudes, and this diversity is not to be
strangled by the absolutism of imposed uniformity. 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. Hence, 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. 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.' 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; (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. 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.
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.
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
18
by the people." But the public portrayal of hard-core sexual conduct for its own
sake, and for the ensuing commercial gain, is a different matter.
The Court does 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.
In sum, the Court (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," not "national standards."
12. Pita V. CA
"Immoral" lore or literature comes within the ambit of free expression, although not
its protection. In free expression cases, this Court has consistently been on the
side of the exercise of the right, barring a "clear and present danger" that would
warrant State interference and action. But, so we asserted in Reyes v. Bagatsing,
"the burden to show the existence of grave and imminent danger that would justify
adverse action ... lies on the. . . authorit[ies]." "There must be objective and
convincing, not subjective or conjectural, proof of the existence of such clear and
present danger." "It is essential for the validity of ... previous restraint or censorship
that the ... authority does not rely solely on his own appraisal of what the public
welfare, peace or safety may require."
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review
of the decision of the Court of Appeals, 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.
FACTS:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated
by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special
Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of
the Metropolitan Police Force of Manila, seized and confiscated from dealers,
distributors, newsstand owners and peddlers along Manila sidewalks, magazines,
publications and other reading materials believed to be obscene, pornographic and

indecent and later burned the seized materials in public at the University belt along
C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several
officers and members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy"
magazines published and co-edited by plaintiff Leo Pita.
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 agents from confiscating
plaintiffs magazines or from otherwise preventing the sale or circulation thereof
claiming that the magazine is a decent, artistic and educational magazine which is
not per se obscene, and that the publication is protected by the Constitutional
guarantees of freedom of speech and of the press.
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 February 3, 1984, the trial court promulgated dismissed the case for
lack of merit. The Appellate Court dismissed the appeal upon the grounds, among
other things, as follows:
1.) 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
19
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).
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.
ISSUE:
1.) Whether or not Pinoy Playboy’s publication is protected by the Constitutional
guarantees of freedom of speech and of the press.
2.) Whether or not 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
RULING:
1.) As long as there is no proof 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; YES.

"Immoral" lore or literature comes within the ambit of free expression,
although not its protection. In free expression cases, this Court has
consistently been on the side of the exercise of the right, barring a "clear
and present danger" that would warrant State interference and action. But,
so we asserted in Reyes v. Bagatsing, "the burden to show the existence of
grave and imminent danger that would justify adverse action ... lies on the. .
. authorit[ies]." "There must be objective and convincing, not subjective or
conjectural, proof of the existence of such clear and present danger." "It is
essential for the validity of ... previous restraint or censorship that the ...
authority does not rely solely on his own appraisal of what the public welfare,
peace or safety may require."
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, 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." "Another test," so Kottinger further declares,
"is that which shocks the ordinary and common sense of men as an indecency.
" Kottinger hastened to say, however, that "[w]hether a picture is obscene or
indecent must depend upon the circumstances of the case, and that ultimately,
the question is to be decided by the "judgment of the aggregate sense of the
community reached by it."
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," the pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova , 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
20
lust and lewdness, and exerting a corrupting influence specially
on the youth of the land. ...
In a much later decision, Gonzalez v. Kalaw Katigbak, 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." 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 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.
The latest word, however, is Miller v. California which established "basic
guidelines," 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."
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. 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.
"To justify such a limitation, there must be proof of such weight and sufficiency to
satisfy the clear and present danger test."
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.
2.) YES. 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." 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)," 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, 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 ." 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
21
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.)
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 .
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, 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.
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 committed. Here, no
party has been charged, nor are such charges being readied against any party,
under Article 201, as amended, of the Revised Penal Code.
We reject outright the argument that "[t]here is no constitutional nor legal provision
which would free the accused of all criminal responsibility because there had been
no warrant," and that "violation of penal law [must] be punished." 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".
22
These do not foreclose, however, defenses under the Constitution or applicable
statutes, or remedies against abuse of official power under the Civil Code" or the
Revised Penal code .
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject
of the search and seizure have been destroyed, the Court declines to grant
affirmative relief. To that extent, the case is moot and academic.
D. Film and Television Review and Censorship
13. MTRCB v ABS-CBN
FACTS: On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN
aired "Prosti-tuition," an episode of the television (TV) program "The Inside Story"
produced and hosted by respondent Legarda. It depicted female students
moonlighting as prostitutes to enable them to pay for their tuition fees. In the
course of the program, student prostitutes, pimps, customers, and some faculty
members were interviewed. The Philippine Women’s University (PWU) was
named as the school of some of the students involved and the facade of PWU
Building at Taft Avenue, Manila conspicuously served as the background of the
episode. The showing of "The Inside Story" caused uproar in the PWU
community. Dr. Leticia P. de Guzman, Chancellor and Trustee of the PWU, and
the PWU Parents and Teachers Association filed letter-complaints with petitioner
MTRCB. Acting on the letter-complaints, the MTRCB Legal Counsel initiated a
formal complaint with the MTRCB Investigating Committee, alleging among
others, that respondents (1) did not submit "The Inside Story" to petitioner for its
review and (2) exhibited the same without its permission, thus, violating Section
74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and
Section 7,7 Chapter IV of the MTRCB Rules and Regulations respondents
explained that the "The Inside Story" is a "public affairs program, news
documentary and socio-political editorial," the airing of which is protected by the
constitutional provision on freedom of expression and of the press. Accordingly,
petitioner has no power, authority and jurisdiction to impose any form of prior
restraint upon respondents
MTRCB declared that all subsequent programs of the “The Inside Story” and all
other programs of the ABS-CBN Ch. 2 of the same category shall be submitted to
the Board of Review and Approval before showing. On appeal, RTC ruled that
Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of
the MTRCB Rules and Regulations are unconstitutional for violating the freedom
of expression and of the press guaranteed by the Constitution

Issue:
Whether the MTRCB has the power or authority to review the “Inside Story” prior
its exhibition or broadcast by TV.
Held: YES
Sec 3 of PD 1986 enumerates the powers, functions and duties of the board:
Xxx
b) to screen, review and examine all motion pictures herein defined, TV
programs, including publicity materials
The court in INC v. CA rules that PD 1986 gives MTRCB the power to screen,
review and examine ALL TV PROGRAMS
*LESSON* where the law does not make any exceptions, courts may not exempt
something therefrom, unless there is compelling reason apparent in the law to
justify it.
Thus, when the law says “all TV programs”, the word all covers all tv programs
whether religious, public affairs, news docu, etc
It then follows that since the Inside Story is a TV Program, MTRCB has the
power to review it
The only exemptions from the MTRCB’s power to review are those mentioned in
Sec 7 of PD 1986
1) TV programs imprinted or exhibited by Phil govt and/or departments and
agencies
2) Newsreels
In a desperate attempt to be exempted, respondents content that Inside Story
falls under the category of newsreels.
MTRCB rules and reg defines newsreels as “straight news reporting, as
distinguished from analyses, commentaries, and opinions. Talk shows on a given
issue are not considered newsreels.
Clearly, Inside Story is not a newsreel but more of a public affairs program and
within petitioner’s power of review.
Issue related to Consti law:
Petitioner’s power to review television programs under Section 3(b) of P. D. No.
1986 does not amount to “prior restraint.”
23
It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of
religion has been accorded a preferred status by the framers of our fundamental
laws, past and present, “designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs x x x.” Yet
despite the fact that freedom of religion has been accorded a preferred status,
still this Court, did not exempt the Iglesia ni Cristo’s religious program from
petitioner’s review power.
Respondents claim that the showing of “The Inside Story” is protected by the
constitutional provision on freedom of speech and of the press. However, there
has been no declaration at all by the framers of the Constitution that freedom of
expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB, with more reason, there is no
justification to exempt therefrom “The Inside Story” which, according to
respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those expressly
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs
imprinted or exhibited by the Philippine Government and/or its departments and
agencies, and (2) newsreels.
E. Cyberspace Communications
14. RENO vs. AMERICAN CIVIL LIBERTIES UNION
Facts:
Two provisions of Communications Decency Act of 1996 (CDA) 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, a criminalizes the "knowing" transmission of "obscene or indecent"
messages to any recipient under 18 years of age. The provisions are:
1. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes the
"knowing" transmission of "obscene or indecent" messages to any
recipient under 18 years of age; and
2. Section 223(d), which prohibits the "knowing" 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."

Immediately after the President signed the statute, 20 plaintiffs 27 filed
suit against the Attorney General of the United States and the Department of
Justice challenging the constitutionality of §§ 223(a)(1) and 223(d). A week later,
based on his conclusion that the term "indecent" was too vague to provide the
basis for a criminal prosecution, District Judge Buckwalter entered a temporary
restraining order against enforcement of § 223(a)(1)(B)(ii) insofar as it applies to
indecent communications. Judge Buckwalter concluded that the word "indecent"
in § 223(a)(1)(B) and the terms "patently offensive" and "in context" in § 223(d)(1)
were so vague that criminal enforcement of either section would violate the
"fundamental constitutional principle" of "simple fairness," and the specific
protections of the First and Fifth Amendments, id., at 858. He found no statutory
basis for the Government's argument that the challenged provisions would be
applied only to "pornographic" materials, noting that, unlike obscenity, "indecency
has not been defined to exclude works of serious literary, artistic, political or
scientific value."
Issue:
Whether the two provisions of Communications Decency Act of 1996
abridges the freedom of speech of the minors protected by the First Amendment.
Held:
Yes, the CDA’s provisions abridge “the freedom of speech” protected by
the First Amendment.
A close look at the precedents relied on by the Government, which are
(1) Ginsberg v. New York, 390 U.S. 629 (1968); (2) FCC v. Pacifica Foundation,
438 U.S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986) 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 uphold
the CDA and are fully consistent with the application of the most stringent review
of its provisions.
24
The CDA thus presents a greater 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.
The Court is persuaded that the CDA lacks the precision that the First
Amendment requires when a statute regulates the content of speech. In order to
deny minors access to potentially harmful speech, the CDA effectively suppresses
a large amount of speech that adults have a constitutional right to receive and to
address to one another. That burden on adult speech is unacceptable if less
restrictive alternatives would be at least as effective in achieving the legitimate
purpose that the statute was enacted to serve. In evaluating the free speech rights
of adults, we have made it perfectly clear that "[s]exual expression which is
indecent but not obscene is protected by the First Amendment." Sable, 492 U. S.,
at 126. See also Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977)
("[W]here obscenity is not involved, we have consistently held that the fact that
protected speech may be offensive to some does not justify its suppression").
Indeed, Pacifica itself admonished that "the fact that society may find speech
offensive is not a sufficient reason for suppressing it."
It is true that the Court has repeatedly recognized the governmental
interest in protecting children from harmful materials. But that interest does not
justify an unnecessarily broad suppression of speech addressed to adults. As we
have explained, the Government may not "reduc[e] the adult population . . . to . . .
only what is fit for children." "[R]egardless of the strength of the government's
interest" in protecting children, "[t]he level of discourse reaching a mailbox simply
cannot be limited to that which would be suitable for a sandbox.
NOTE: Here are the facts about the cited cases, just in case he asks
Ginsberg vs. New York
In Ginsberg, the Court upheld the constitutionality of a New York statute
that prohibited selling to minors under 17 years of age material that was considered
obscene as to them even if not obscene as to adults. We rejected the defendant's
broad submission that "the scope of the constitutional freedom of expression
secured to a citizen to read or see material concerned with sex cannot be made to
depend on whether the citizen is an adult or a minor."
In rejecting that contention, the Court relied not only on the State's
independent interest in the well-being of its youth, but also on our consistent

recognition of the principle that "the parents' claim to authority in their own
household to direct the rearing of their children is basic in the structure of our
society."
In four important respects, the statute upheld in Ginsberg was narrower
than the CDA. First, we noted in Ginsberg that "the prohibition against sales to
minors does not bar parents who so desire from purchasing the magazines for their
children. Under the CDA, by contrast, neither the parents' consent--nor even their
participation--in the communication would avoid the application of the statute.
Second, the New York statute applied only to commercial transactions, whereas
the CDA contains no such limitation. Third, the New York statute cabined its
definition of material that is harmful to minors with the requirement that it be "utterly
without redeeming social importance for minors." The CDA fails to provide us with
any definition of the term "indecent" as used in § 223(a)(1) and, importantly, omits
any requirement that the "patently offensive" material covered by § 223(d) lack
serious literary, artistic, political, or scientific value. Fourth, the New York statute
defined a minor as a person under the age of 17, whereas the CDA, in applying to
all those under 18 years, includes an additional year of those nearest majority.
As with the New York statute at issue in Ginsberg, there are significant
differences between the order upheld in Pacifica and the CDA. First, the order in
Pacifica, issued by an agency that had been regulating radio stations for decades,
targeted a specific broadcast that represented a rather dramatic departure from
traditional program content in order to designate when--rather than whether--it
would be permissible to air such a program in that particular medium. The CDA's
broad categorical prohibitions are not limited to particular times and are not
dependent on any evaluation by an agency familiar with the unique characteristics
of the Internet. Second, unlike the CDA, the Commission's declaratory order was
not punitive; we expressly refused to decide whether the indecent broadcast
"would justify a criminal prosecution." Finally, the Commission's order applied to a
medium which as a matter of history had "received the most limited First
Amendment protection," in large part because warnings could not adequately
protect the listener from unexpected program content. The Internet, however, has
no comparable history. Moreover, the District Court found that the risk of
encountering indecent material by accident is remote because a series of
affirmative steps is required to access specific material.
FCC vs. Pacifica Foundation
In Pacifica, the Court upheld a declaratory order of the Federal
Communications Commission, holding that the broadcast of a recording of a 12-
minute monologue entitled "Filthy Words" that had previously been delivered to a
live audience "could have been the subject of administrative sanctions." The
25
Commission had found that the repetitive use of certain words referring to
excretory or sexual activities or organs "in an afternoon broadcast when children
are in the audience was patently offensive" and concluded that the monologue was
indecent "as broadcast." The respondent did not quarrel with the finding that the
afternoon broadcast was patently offensive, but contended that it was not
"indecent" within the meaning of the relevant statutes because it contained no
prurient appeal. After rejecting respondent's statutory arguments, we confronted
its two constitutional arguments: (1) that the Commission's construction of its
authority to ban indecent speech was so broad that its order had to be set aside
even if the broadcast at issue was unprotected; and (2) that since the recording
was not obscene, the First Amendment forbade any abridgement of the right to
broadcast it on the radio.
In the portion of the lead opinion not joined by Justices Powell and
Blackmun, the plurality stated that the First Amendment does not prohibit all
governmental regulation that depends on the content of speech. Accordingly, the
availability of constitutional protection for a vulgar and offensive monologue that
was not obscene depended on the context of the broadcast. Relying on the
premise that "of all forms of communication" broadcasting had received the most
limited First Amendment protection, the Court concluded that the ease with which
children may obtain access to broadcasts, "coupled with the concerns recognized
in Ginsberg," justified special treatment of indecent broadcasting.
Renton vs. Playtime Theatres Inc.
In Renton, we upheld a zoning ordinance that kept adult movie theatres
out of residential neighborhoods. The ordinance was aimed, not at the content of
the films shown in the theaters, but rather at the "secondary effects"--such as crime
and deteriorating property values--that these theaters fostered: " ‘It is th[e]
secondary effect which these zoning ordinances attempt to avoid, not the
dissemination of "offensive" speech.' "(quoting Young v. American Mini Theatres,
Inc., 427 U.S. 50, 71, n. 34 (1976)). According to the Government, the CDA is
constitutional because it constitutes a sort of "cyberzoning" on the Internet. But the
CDA applies broadly to the entire universe of cyberspace. And the purpose of the
CDA is to protect children from the primary effects of "indecent" and "patently
offensive" speech, rather than any "secondary" effect of such speech. Thus, the
CDA is a content based blanket restriction on speech, and, as such, cannot be
"properly analyzed as a form of time, place, and manner regulation." 475 U. S., at
46. ("Listeners' reaction to speech is not a content neutral basis for regulation").
15. DISINI JR. VS SECRETARY OF JUSTICE
Facts:
 26

The cybercrime law aims to regulate access to and use of the cyberspace. Using into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the
his laptop or computer, a person can connect to the internet, a system that links system.
him to other computers and enable him, among other things, to:
Pending hearing and adjudication of the issues presented in these cases, on
1. Access virtual libraries and encyclopedias for all kinds of information that he February 5, 2013 the Court extended the original 120-day temporary restraining
needs for research, study, amusement, upliftment, or pure curiosity; order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders.
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;
Issue:
3. Advertise and promote goods or services and make purchases and payments;
Whether or not the 21 separate sections of the Act violate their constitutional rights,
4. Inquire and do business with institutional entities like government agencies, particularly the right to freedom of expression and access to information.
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 Ruling:
or telephone.
The government of Philippines adopted the Cybercrime Prevention Act of 2012 for
This is cyberspace, a system that accommodates millions and billions of the purpose of regulating access to and use of cyberspace. Several sections of
simultaneous and ongoing individual accesses to and uses of the internet. The the law define relevant cyber crimes and enable the government to track down and
cyberspace is a boon to the need of the current generation for greater information penalize violators.
and facility of communication. But all is not well with the system since it could not
Among 21 challenged sections, the Court declared Sections 4(c)(3), 12, and 19 of
filter out a number of persons of ill will who would want to use cyberspace
the Act as unconstitutional.
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 Section 4(c)(3) prohibits the transmission of unsolicited commercial electronic
defamatory statements against him that people can read. communications, commonly known as spams, that seek to advertise, sell, or offer
for sale of products and services unless the recipient affirmatively consents, or
And because linking with the internet opens up a user to communications from
when the purpose of the communication is for service or administrative
others, the ill-motivated can use the cyberspace for committing theft by hacking
announcements from the sender to its existing users, or “when the following
into or surreptitiously accessing his bank account or credit card or defrauding him
conditions are present: (aa) The commercial electronic communication contains a
through false representations. The wicked can use the cyberspace, too, for illicit
simple, valid, and reliable way for the recipient to reject receipt of further
trafficking in sex or for exposing to pornography guileless children who have
commercial electronic messages (opt-out) from the same source; (bb) The
access to the internet. For this reason, the government has a legitimate right to
commercial electronic communication does not purposely disguise the source of
regulate the use of cyberspace and contain and punish wrongdoings.
the electronic message; and (cc) The commercial electronic communication does
Notably, there are also those who would want, like vandals, to wreak or cause not purposely include misleading information in any part of the message in order
havoc to the computer systems and networks of indispensable or highly useful to induce the recipients to read the message.”
institutions as well as to the laptop or computer programs and memories of
The government argued that unsolicited commercial communications amount to
innocent individuals. They accomplish this by sending electronic viruses or virtual
both nuisance and trespass because they tend to interfere with the enjoyment of
dynamites that destroy those computer systems, networks, programs, and
using online services and that they enter the recipient’s domain without prior
memories. The government certainly has the duty and the right to prevent these
permission.
tomfooleries from happening and punish their perpetrators, hence the Cybercrime
Prevention Act. The Court first noted that spams are a category of commercial speech, which does
not receive the same level of protection as other constitutionally guaranteed forms
But petitioners claim that the means adopted by the cybercrime law for regulating
of expression ,”but is nonetheless entitled to protection.” It ruled that the
undesirable cyberspace activities violate certain of their constitutional rights. The
prohibition on transmitting unsolicited communications “would deny a person the
government of course asserts that the law merely seeks to reasonably put order

right to read his emails, even unsolicited commercial ads addressed to
him.” Accordingly, the Court declared Section4(c)(3) as unconstitutional.
Section 12 of the Act authorizes the law enforcement without a court warrant “to
collect or record traffic data in real-time associated with specified communications
transmitted by means of a computer system.” Traffic data under this Section
includes the origin, destination, route, size, date, and duration of the
communication, but not its content nor the identity of users.
The Petitioners argued that such warrantless authority curtails their civil liberties
and set the stage for abuse of discretion by the government. They also claimed
that this provision violates the right to privacy and protection from the government’s
intrusion into online communications.
According to the Court, since Section 12 may lead to disclosure of private
communications, it must survive the rational basis standard of whether it is
narrowly tailored towards serving a government’s compelling interest. The Court
found that the government did have a compelling interest in preventing cyber
crimes by monitoring real-time traffic data.
As to whether Section 12 violated the right to privacy, the Court first recognized
that the right at stake concerned informational privacy, defined as “the right not to
have private information disclosed, and the right to live freely without surveillance
and intrusion.” In determining whether a communication is entitled to the right of
privacy, the Court applied a two-part test: (1) Whether the person claiming the right
has a legitimate expectation of privacy over the communication, and (2) whether
his expectation of privacy can be regarded as objectively reasonable in the
society.
The Court noted that internet users have subjective reasonable expectation of
privacy over their communications transmitted online. However, it did not find the
expectation as objectively reasonable because traffic data sent through internet
“does not disclose the actual names and addresses (residential or office) of the
sender and the recipient, only their coded Internet Protocol (IP) addresses.”
Even though the Court ruled that real-time traffic data under Section 12 does not
enjoy the objective reasonable expectation of privacy, the existence of enough
data may reveal the personal information of its sender or recipient, against which
the Section fails to provide sufficient safeguard. The Court viewed the law as
“virtually limitless, enabling law enforcement authorities to engage in “fishing
expedition,” choosing whatever specified communication they want.”
Accordingly, the Court struck down Section 12 for lack of specificity and
definiteness as to ensure respect for the right to privacy.
Section 19 authorizes the Department of Justice to restrict or block access to a
computer data found to be in violation of the Act. The Petitioners argued that this
section also violated the right to freedom of expression, as well as the constitutional
protection against unreasonable searches and seizures.
27
The Court first recognized that computer data constitutes a personal property,
entitled to protection against unreasonable searches and seizures. Also, the
Philippines’ Constitution requires the government to secure a valid judicial warrant
when it seeks to seize a personal property or to block a form of
expression. Because Section 19 precluded any judicial intervention, the Court
found it unconstitutional.
16. PACKINGHAM VS. NORTH CAROLINA
FACTS:
In 2008, North Carolina enacted a statute making it a felony for a registered sex
offender to gain access to a number of websites, including commonplace social
media websites like Facebook and Twitter.
In 2002, petitioner Lester Gerard Packingham—then a 21-year-old college
student—had sex with a 13-year-old girl. He pleaded guilty to taking indecent
liberties with a child. Because this crime qualifies as “an offense against a minor,”
petitioner was required to register as a sex offender—a status that can endure for
30 years or more.
As a registered sex offender, petitioner was barred under §14–202.5 from gaining
access to commercial social networking sites.
In 2010, a state court dismissed a traffic ticket against petitioner. In response, he
logged on to Facebook.com and posted the following statement on his personal
profile:
“Man God is Good! How about I got so much favor they dismissed the ticket before
court even started? No fine, no court cost, no nothing spent. . . . . .Praise be to
GOD, WOW! Thanks JESUS!”
At the time, a member of the Durham Police Department was investigating
registered sex offenders who were thought to be violating §14–202.5. The officer
noticed that a “‘J. R. Gerrard’” had posted the statement quoted above.
By checking court records, the officer discovered that a traffic citation for petitioner
had been dismissed around the time of the post. Evidence obtained by search
warrant confirmed
the officer’s suspicions that petitioner was J. R. Gerrard. Petitioner was indicted by
a grand jury for violating §14–202.5. The trial court denied his motion to dismiss
the indictment on the grounds that the charge against him violated the First
Amendment. Petitioner was ultimately convicted and given a suspended prison

sentence. At no point during trial or sentencing did the State allege that petitioner
contacted a minor—or committed any other illicit act—on the Internet.
Petitioner appealed to the Court of Appeals of North Carolina. That court struck
down §14–202.5 on First Amendment grounds, explaining that the law is not
narrowly tailored to serve the State’s legitimate interest in protecting minors from
sexual abuse. Rather, the law “arbitrarily
burdens all registered sex offenders by preventing a wide range of communication
and expressive activity unrelated to achieving its purported goal.” Ibid. The North
Carolina Supreme Court reversed, concluding that the law is “constitutional in all
respects.”
Among other things, the court explained that the law is “carefully tailored . . . to
prohibit registered sex offenders from accessing only those Web sites that allow
them the opportunity to gather information about minors.” The court also held that
the law leaves open adequate alternative means of communication because it
permits petitioner to gain access to websites that the court believed perform the
“same or similar” functions as social media, such as the Paula Deen Network and
the website for the local NBC affiliate.
Two justices dissented. They stated that the law impermissibly “creates a criminal
prohibition of alarming breadth and extends well beyond the evils the State seeks
to combat.”
ISSUE:
Whether or no the law is valid
RULING:
The US Supreme Court held that NO, the law is invalid.
To foreclose access to social media altogether is to prevent the user from
engaging in the legitimate exercise of First Amendment rights. It is unsettling to
suggest that only a limited set of websites can be used even by persons who
have completed their sentences. Even convicted criminals—and in some
instances especially convicted criminals—might receive legitimate benefits from
these means for access to the world of ideas, in particular if they seek to reform
and to pursue lawful and rewarding lives.
F. Elections and Expressions
17. ABS-CBN v. COMELEC
Facts:
28
ABS-CBN Broadcasting Corporation is assailing Commission on Elections En
Banc Resolution No. 98-1419 that approved the issuance of a restraining order to
stop ABS-CBN, its other groups, agents or representatives from conducting exit
surveys during the elections for national officials, particularly for President and Vice
President. The electoral body believed that such project might conflict with the
official COMELEC count, as well as the unofficial quick count of the National
Movement for Free Elections (NAMFREL).
Issue: Whether the COMELEC Resolution restraining survey polls infringes the
Freedom of Speech and of the Press.
Ruling:
Yes, the respondent Comelec acted with grave abuse of discretion amounting to
lack or excess of jurisdiction. The Court ruled that the holding of exit polls and the
dissemination of their results through mass media constitute an essential part of
the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections.
Moreover, the Comelec's concern with the possible noncommunicative effect of
exit polls — disorder and confusion in the voting centers — does not justify a total
ban on them. Undoubtedly, the assailed Comelec Resolution was too broad, since
its application is without qualification as to whether the polling is disruptive or not.
Concededly, the Omnibus Election Code prohibits disruptive behaviors around the
voting centers. There was no showing, however, that exit polls or the means to
interview voters cause chaos in voting centers. Neither had any evidence been
presented proving that the presence of exit poll reporters near the election
precincts tended to create disorder or confuse the voters.
The holding of exit polls and the dissemination of their results through mass media
constitute an essential part of the freedoms of speech and of the press. Hence, the
COMELEC cannot ban them totally in the guise of promoting clean, honest, orderly
and credible elections. Quite the contrary, exit polls — properly conducted and
publicized — can be vital tools in eliminating the evils of election-fixing and fraud.
Narrowly tailored countermeasures may be prescribed by the COMELEC so as to
minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.
The freedoms of speech and of the press should all the more be upheld when what
is sought to be curtailed is the dissemination of information meant to add meaning
to the equally vital right of suffrage. The Court cannot support any ruling or order
“the effect of which would be to nullify so vital a constitutional right as free speech.”
When faced with borderline situations in which the freedom of a candidate or a
party to speak or the freedom of the electorate to know is invoked against actions
allegedly made to assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and the State’s
power to regulate should not be antagonistic. There can be no free and honest
elections if, in the efforts to maintain them, the freedom to speak and the right to
know are unduly curtailed.

18. SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN
PUBLISHING CORPORATION, doing business as MANILA STANDARD v.
COMMISSION ON ELECTIONS
Under O’Brien 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 suppression of free expression.
Facts:
The COMELEC sought to enforce 5.4 of R.A. 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 before an election. Election surveys refer to the
measurement of opinions and perceptions of the voters as regards a candidates
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
Petitioners brought this action for prohibition to enjoin the Commission on
Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act). 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 the
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 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.
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.
Issue:
Whether 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of
freedom of speech, expression, and the press.
Ruling:
YES. The Supreme Court held that 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press. For
as Court have pointed out in sustaining the ban on media political advertisements,
the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal
29
opportunity, time, space, and the right to reply as well as uniform and reasonable
rates of charges for the use of such media facilities for public information
campaigns and forums among candidates.
However, JUSTICE KAPUNAN dissents through relating to Art. IX-C, 4,
as he 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. After canvassing the reasons for the prohibition, i.e., to prevent
lastminute 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 cheating called dagdag- bawas and invoking the
States power to supervise media of information during the election period. He said
that 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.
But SC argued that 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.
The Supreme Court applied the O’Brien Test in the case at bar. Held in
United States v. OBrien:
[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.
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 suppression 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.
Thus, using the aforementioned test, the Supreme Court ruled 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 the suppression of freedom
of expression. 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.
19. GMA NETWORK v. COMELEC
734 SCRA 88 (2014)
Elections and Expressions
Facts:
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 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.
PETITIONERS’ CONTENTIONS:
 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 also 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
30
party's aggregate airtime, otherwise, it may incur administrative
and criminal liability.
Issue:
Whether or not Section 9 (a) of COMELEC Resolution No. 9615 on
airtime limits violates freedom of expression, of speech and of the press.
Ruling:
YES. The Supreme Court declared Section 9 (a) of COMELEC Resolution
No. 9615 on airtime limits as UNCONSTITUTIONAL for it goes against the
constitutional guaranty of freedom of expression, of speech and of the press.
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.
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.
The guaranty of freedom to speak is useless without the ability to
communicate and disseminate 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. Thus, 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.
 31

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." 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:
people. Only a free and unrestrained press can effectively expose deception in
government."
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.
20. Diocese of Bacolod v Commission on Elections

A restriction on the amount of money a person or group can spend on political Facts:
communication during a campaign necessarily reduces the quantity of expression
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
by restricting the number of issues discussed, the depth of their exploration, and
compound housing at the San Sebastian Cathedral of Bacolod. Each tarpaulin was
the size of the audience reached. This is because virtually every means of
approximately six feet (6') by ten feet (10') in size. They were posted on the front
communicating ideas in today's mass society requires the expenditure of money.
walls of the cathedral within public view. The first tarpaulin contains the message
The distribution of the humblest handbill or leaflet entails printing, paper, and
"IBASURA RH Law" referring to the Reproductive Health Law of 2012 or Republic
circulation costs. Speeches and rallies generally necessitate hiring a hall and
Act No. 10354. The second tarpaulin is the subject of the present case. This
publicizing the event. The electorate's increasing dependence on television, radio,
tarpaulin contains the heading "Conscience Vote" and lists candidates as either
and other mass media for news and information has made these expensive modes
"(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X"
of communication indispensable instruments of effective political speech.
mark. The electoral candidates were classified according to their vote on the
adoption of Republic Act No. 10354, otherwise known as the RH Law. Those who
The expenditure limitations contained in the Act represent substantial, voted for the passing of the law were classified by petitioners as comprising "Team
rather than merely theoretical restraints on the quantity and diversity of political Patay," while those who voted against it form "Team Buhay":
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 TEAM BUHAY TEAM PATAY
limitations on expenditures by campaign organizations and political parties provide
Estrada, JV Angara, Juan Edgardo
substantially greater room for discussion and debate, they would have required
restrictions in the scope of a number of past congressional and Presidential Honasan, Gregorio Casiño, Teddy
campaigns and would operate to constrain campaigning by candidates who raise
sums in excess of the spending ceiling. Magsaysay, Mitos Cayetano, Alan Peter

Pimentel, Koko Enrile, Jackie

Respondent itself states that "[t]elevision is arguably the most
costeffective medium of dissemination. Even a slight increase in television Trillanes, Antonio Escudero, Francis
exposure can significantly boost a candidate's popularity, name recall and
electability." If that be so, then drastically curtailing the ability of a candidate to Villar, Cynthia Hontiveros, Risa
effectively reach out to the electorate would unjustifiably curtail his freedom to
speak as a means of connecting with the people. Party List Buhay Legarda, Loren

Party List Ang Pamilya Party List Gabriela

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 Party List Akbayan
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, Party List Bayan Muna
not the governors. The Government's power to censor the press was abolished so
Party List Anak Pawis
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

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
Election Officer of Bacolod City, issued a Notice to Remove Campaign Materials
addressed to petitioner 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').
On February 25, 2013, petitioners replied 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. On February 27, 2013, COMELEC
Law Department issued a letter 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 silent on the remedies available to
petitioners.
Concerned about the imminent threat of 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. 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.
Issue:
Whether the COMELEC order of taking down the tarpaulin violates the freedom of
expression.
Ruling:
YES. 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
32
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 stereotype 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
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. 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. 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 protection.
XXXXXXXXXX
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.
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, 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. 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. What was questioned was not a law but the
Mayor's refusal to issue a permit for the holding of petitioner's public meeting.
Nevertheless, this court recognized the constitutional right to freedom of speech,
to peaceful assembly and to petition for redress of grievances, albeit not absolute,
and the petition for mandamus to compel respondent Mayor to issue the permit
was granted.
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. The
right to freedom of expression was similarly upheld in this case and, consequently,
the assailed resolution was nullified and set aside.
. . . 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.
33
The word "expression" was added in the 1987 Constitution by Commissioner
Brocka for having a wider scope
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."
XXXXXXXXXX
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."
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."
It anchors on the principle that the cornerstone of every democracy is that
sovereignty resides in the people. 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 public
affairs, 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."
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." 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."

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:"
Third, free speech involves self-expression that enhances human dignity. This right
is "a means of assuring individual self-fulfillment," among others. In Philippine
Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 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.
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." 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." 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]." 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"
and the minorities who may be oppressed by "dominant factions of the electorate
[that] capture [the] government for their own selfish ends[.]" 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." 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.
34
Lastly, free speech must be protected under the safety valve theory. This provides
that "nonviolent manifestations of dissent reduce the likelihood of violence[.]" "[A]
dam about to burst . . . resulting in the 'banking up of a menacing Pood of sullen
anger behind the walls of restriction'" has been used to describe the effect of
repressing nonviolent outlets. 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" 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[,]" and conduct peaceful rallies and other similar acts. 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.
XXXXXXXXXX
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. As such, it is subject to regulation by COMELEC
under its constitutional mandate.
On the other hand, petitioners invoke their "constitutional right to communicate
their opinions, views and beliefs about issues and candidates." 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. It was "part of their advocacy campaign against the RH Law,"
which was not paid for by any candidate or political party. Thus, "the questioned
orders which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression
should be declared unconstitutional and void." The court has held free speech and
other intellectual freedoms as "highly ranked in our scheme of constitutional
values." These rights enjoy precedence and primacy.
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.

21. 1-United Transport Koalisyon (1-Utak) v. Commission on Elections
755 SCRA 441 (2015)
The right to participate in electoral processes is a basic and fundamental right in any
democracy. It includes not only the right to vote, but also the right to urge others to
vote for a particular candidate. The right to express one's preference for a candidate
is likewise part of the fundamental right to free speech. Thus, any governmental
restriction on the right to convince others to vote for a candidate carries with it a
heavy presumption of invalidity.
Facts:
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known
as the "Fair Elections Act", was passed. Section 9 thereof provides:
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 of the
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.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615,
which provided for the rules implementing R.A. No. 9006 in connection with the
May 13, 2013 national and local elections and subsequent elections. Section 7
thereof, which enumerates the prohibited forms of election propaganda, pertinently
provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the
campaign period, it is unlawful:
xxxx
35
(f) To post, display or exhibit any election campaign or propaganda
material outside of authorized common poster areas, in public places, or
in private properties without the consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of
the following:
xxxx
5. Public utility vehicles such as buses, jeepneys, trains, taxi
cabs, ferries, pedicabs and tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus
terminals, airports, seaports, docks, piers, train stations, and the
like.
The violation of items [5 and 6] under subsection (g) shall be a
cause for the revocation of the public utility franchise and will make the
owner and/or operator of the transportation service and/or terminal liable
for an election offense under Section 9 of Republic Act No. 9006 as
implemented by Section 18 (n) of these Rules.
The petitioner (1-Utak), through its president, Melencio F. Vargas, sought
clarification from the COMELEC as regards the application of Resolution No. 9615,
particularly Section 7(g) items (5) and (6), in relation to Section 7(f), vis-a-
vis privately owned public utility vehicles (PUVs) and transport terminals. The
petitioner explained that the prohibition stated in the aforementioned provisions
impedes the right to free speech of the private owners of PUVs and transport
terminals and that the prohibition curtails their ideas of who should be voted by the
public. The petitioner then requested the COMELEC to reconsider the
implementation of the assailed provisions and allow private owners of PUVs and
transport terminals to post election campaign materials on their vehicles and
transport terminals.
COMELEC En Banc denied the request to reconsider explaining that
privately-owned PUVs and transport terminals are public spaces that are subject
to its regulation. The exact purpose for placing political advertisements on a PUV
or in transport terminals is exactly because it is public and can be seen by all;
and although it is true that private vehicles ply the same route as public vehicles,
the exposure of a [PUV] servicing the general, riding public is much more
compared to private vehicles. Categorizing PUVs and transport terminals as
'public places' under Section 7 (f) of Reso. No. 9615 is therefore logical. The
same reasoning for limiting political advertisements in print media, in radio, and in
television therefore holds true for political advertisements in PUVs and transport
terminals.
Further, the COMELEC points out that PUVs and private transport
terminals hold a captive audience - the commuters, who have no choice but be
subjected to the blare of political propaganda. Thus, the COMELEC avers, it is
within its constitutional authority to prevent privately-owned PUVs and transport
terminals from concurrently serving campaign materials to the captive audience
that they transport. Resolution No. 9615 is a valid content-neutral regulation and,
thus, does not impinge on the constitutional right to freedom of speech.

Hence this petition for certiorari.
Issues:
1. Whether or not Resolution No. 9615 violates the constitutional right to
freedom of speech and expression.
2. Whether or not Section 7(g) items (5) and (6) of Resolution No. 9615
are not justified under the captive-audience doctrine.
Ruling:
1. The Supreme Court held that YES, Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No. 9615 unduly infringe on the fundamental
right of the people to freedom of speech. Central to the prohibition is the freedom
of individuals, i.e., the owners of PUVs and private transport terminals, to express
their preference, through the posting of election campaign material in their
property, and convince others to agree with them.
The prohibition constitutes a clear prior restraint on the right to free
expression of the owners of PUVs and transport terminals. As a result of the
prohibition, owners of PUVs and transport terminals are forcefully and effectively
inhibited from expressing their preferences under the pain of indictment for an
election offense and the revocation of their franchise or permit to operate.
COMELEC’s claim that it is a valid content-neutral regulation cannot
stand. A content-neutral regulation, i.e., which is merely concerned with the
incidents of the speech, or one that merely controls the time, place or manner, and
under well-defined standards, is constitutionally permissible, even if it restricts the
right to free speech, provided that the following requisites concur: first, the
government regulation is within the constitutional power of the
Government; second, it furthers an important or substantial governmental
interest; third, the governmental interest is unrelated to the suppression of free
expression; and fourth, the incidental restriction on freedom of expression is no
greater than is essential to the furtherance of that interest. Section 7(g) items (5)
and (6) of Resolution No. 9615 are content-neutral regulations since they merely
control the place where election campaign materials may be posted. However, the
prohibition is still repugnant to the free speech clause as it fails to satisfy all of the
requisites for a valid content-neutral regulation.
Going by the requisites:
1. Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the
constitutionally delegated power of the COMELEC to supervise or
regulate the franchise or permit to operate of transportation utilities. The
posting of election campaign material on vehicles used for public
36
transport or on transport terminals is not only a form of political
expression, but also an act of ownership - it has nothing to do with the
franchise or permit to operate the PUV or transport terminal.
2. It is conceded that Resolution No. 9615, including the herein assailed
provisions, furthers an important and substantial governmental
interest, i.e., ensuring equal opportunity, time and space among
candidates aimed at the holding of free, orderly, honest, peaceful, and
credible elections.
3. It is further conceded that the governmental interest in imposing the
said prohibition is unrelated to the suppression of free expression.
4. Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to
satisfy the fourth requisite of a valid content-neutral regulation, i.e., the
incidental restriction on freedom of expression is no greater than is
essential to the furtherance of that interest. There is absolutely no
necessity to restrict the right of the owners of PUVs and transport
terminals to free speech to further the governmental interest. While
ensuring equality of time, space, and opportunity to candidates is an
important and substantial governmental interest and is essential to the
conduct of an orderly election, this lofty aim may be achieved sans any
intrusion on the fundamental right of expression.
2. The Supreme Court held that NO, COMELEC’s claim regarding
“captive audience” is untenable.
The captive-audience doctrine states that when a listener cannot, as a
practical matter, escape from intrusive speech, the speech can be restricted. The
"captive-audience" doctrine recognizes that a listener has a right not to be exposed
to an unwanted message in circumstances in which the communication cannot be
avoided. A regulation based on the captive-audience doctrine is in the guise of
censorship, which undertakes selectively to shield the public from some kinds of
speech on the ground that they are more offensive than others. Such selective
restrictions have been upheld only when the speaker intrudes on the privacy of the
home or the degree of captivity makes it either impossible or impractical for the
unwilling viewer or auditor to avoid exposure.
Thus, a government regulation based on the captive-audience doctrine
may not be justified if the supposed "captive audience" may avoid exposure to the
otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6) of
Resolution No. 9615 is not justified under the captive-audience doctrine; the
commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals. Nor are they incapable of declining to

receive the messages contained in the posted election campaign materials since
they may simply avert their eyes if they find the same unbearably intrusive.
22. Social Weather Stations Inc, v. COMELEC (2015)
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.
FACTS:
Commission on Elections' (COMELEC) Resolution No. 9674 directed Social
Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as "other
survey firms of similar circumstance" to submit to COMELEC the names of all
commissioners and payors of all surveys published from February 12, 2013 to April
23, 2013, including those of their "subscribers."
SWS and Pulse Asia are social research and public polling firms. Among their
activities is the conduct of pre-election surveys.[
As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS
conducted a pre-election survey on voters' preferences for senatorial candidates.
Thereafter, it published its findings. The following question was asked in the
survey:
Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong
iboboto bilang mga SENADOR ng PILIPINAS? Narito ang listahan ng mga
kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng pangalan hg
mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng
hanggang labindalawang (12) kandidato.
On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-
General of the United Nationalist Alliance (UNA), wrote Atty. Esmeralda Ladra,
Director of COMELEC's Law Department. In his letter, Tiangco asked COMELEC
to "compel [SWS] to either comply with the directive in the Fair Election Act and
COMELEC Resolution No. 9[6]1[5] and give the names or identities of the
subscribers who paid for the [pre-election survey conducted from February 15 to
February 17, 2013], or be liable for the violation thereof, an act constitutive of an
37
election offense."
Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among
others, that he "be furnished the identity of persons who paid for the [pre-election
survey conducted from February 15 to February 17, 2013] as well as those who
subscribed to it. ]Sometime in March 2013, SWS supposedly replied to Tiangco,
"furnishing [him] with some particulars about the survey but [without] disclosing]
the identity of the persons who commissioned or subscribed to the survey."
Acting on Tiangco's letter and on the COMELEC Law Department's
recommendation, the COMELEC En Bane issued the Order dated April 10, 2013
setting the matter for hearing on April 16, 2013. The same Order directed SWS to
submit its Comment within three (3) days of receipt. On April 12, 2013, Pulse Asia
received a letter from COMELEC "requesting its representative to attend the
COMELEC hearing. SWS and Pulse Asia recounted that during the hearing,
COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC Chairman Brillantes)
stated that the proceeding was merely a clarificatory hearing and not a formal
hearing or an investigation.
On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire
dispositive portion of this Resolution reads:
WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby
RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms of similar
circumstance to submit within three (3) days from receipt of this Resolution the
names of all commissioners and payors of surveys published from February 12,
2013 to the date of the promulgation of this Resolution for copying and verification
by the Commission. The submission shall include the names of all "subscribers" of
those published surveys. Such information/data shall be for the exclusive and
confidential use of the Commission;
RESOLVED FURTHER, that all surveys published subsequent to the promulgation
of this Resolution must be accompanied by all the information required in Republic
Act no. 9006, including the names of commissioners, payors and subscribers.
This resolution shall take effect immediately after publication.
A violation of these rules shall constitu[t]e an election offense as provided in
Republic Act no. 9006, or the Fair Election Act. (Emphasis in the original)
As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)[19] of
the 1987 Constitution and Sections 5.1 to 5.3 of Republic Act No. 9006, otherwise
known as the Fair Election Act, as implemented by COMELEC Resolution No.
9615.[21]
SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674

and as of their filing before this court of the present Petition, they had not been
furnished copies of Resolution No. 9674.
On May 8, 2013, the COMELEC Law Department issued a Notice to SWS (and
also to Pulse Asia) directing it to furnish COMELEC with a list of the names of all
"commissioners, subscribers, and payors of surveys published from February 12,
2013 until April 23, 2013. SWS was warned that failure to comply with the Notice
shall constitute an election offense punishable under the Omnibus Election Code.
On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc.
filed the present Petition. They assail Resolution No. 9674 as having been
issued ultra vires. They are of the position that Resolution No. 9674, in requiring
the submission of information on subscribers, is in excess of what the Fair Election
Act requires. Likewise, they, assert that Resolution No. 9674 transgresses the Fair
Election Act in making itself executory immediately after publication. Moreover,
they claim that it violates the non-impairment of contracts clause of the
Constitution, and was enforced in violation of their right to due process (as they
were charged with its violation despite not having been properly served with copies
of the complaint filed against them). Petitioners pray for the issuance of a
temporary restraining order and/or writ of preliminary injunction in the interim.
In this court's July 30, 2013 Resolution, COMELEC was required to file a Comment
on the Petition. In the same Resolution, this court issued a temporary restraining
order "enjoining the enforcement of COMELEC Resolution No. 9674 with respect
to submission of the names of regular subscribers but not to the submission of (1)
the names of specific subscribers for the limited period of February 12, 2013 to
April 23, 2013 who have paid a substantial amount of money for access to survey
results and privileged survey data; and (2) the names of all commissioners and
payors of surveys published within the same period."
ISSUE:
Whether or not the rights of petitioners to free speech will be curtailed by the
requirement to submit the names of their subscribers;
RULING:
1.) NO. We sustain the validity of Resolution No. 9674. The names of those
who commission or pay for election surveys, including subscribers of
survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair
Election Act. This requirement is a valid regulation in the exercise of police
power and effects the constitutional policy of "guarantee[ing] equal access
to opportunities for public service[.]" Section 5.2(a)'s requirement of
disclosing subscribers neither curtails petitioners' free speech rights.
However, it is evident that Resolution No. 9674 was promulgated in violation of the
period set by the Fair Election Act. Petitioners were also not served a copy of
38
Resolution No. 9674 with which they were asked to comply. They were neither
shown nor served copies of the criminal Complaint subject of E.O. Case No. 13-
222. Petitioners' right to due process was, thus, violated.
Petitioners assail Resolution No. 9674's requirement of submission of names of
subscribers, including those who did not commission or pay for a specific survey
or cause its publication, for being ultra vires. They maintain that the Fair Election
Act "as it was written by Congress covers only those who commission or pay for a
particular election survey, and requires disclosure of their names only when that
particular survey is published." From this, they add that COMELEC exceeded its
authority "creating] an election offense where there was none before in considering
as an election offense any violation of Resolution No. 9674.
COMELEC, for its part, insists on the "wide latitude of discretion granted to it in the
performance of its constitutional duty to "[e]nforce and administer all laws and
regulations relative to the conduct of an election] It adds that "as the specialized
constitutional body charged with the enforcement and administration of election
laws, its contemporaneous construction of Section 5.2(a) of the Fair Election Act
is "entitled to great weight and respect." Citing the supposed legislative intent of
Section 5.2 as "broaden[ing] the subject of disclosure, COMELEC claims that
Section 5.2(a) "draws no distinction between the direct payors and the indirect
payors of the survey. It adds that requiring the disclosure of survey subscribers
addresses the requirement of reporting election expenditures by candidates and
political parties, thereby helping COMELEC check compliance with this
requirement.
Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with
its text but also with the purpose for which it, along with the Fair Election Act, was
adopted, sustains COMELEC's position.
Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or
ensuring] equal opportunity for public service" and to this end, stipulates
mechanisms for the "supervision] or regulation of] the enjoyment or utilization of all
franchises or permits for the operation of media of communication or information[.]"
Hence, its short title: Fair Election Act.
Situated within the constitutional order, the Fair Election Act provides means to
realize the policy articulated in Article II, Section 26 of the 1987 Constitution to
"guarantee equal access to opportunities for public service[.]" Article II, Section 26
models an understanding of Philippine political and electoral reality. It is not merely
hortatory or a statement of value. Among others, it sums up an aversion to the
perpetuation of political power through electoral contests skewed in favor of those
with resources to dominate the deliberative space in any media.
Apart from making real Article II, Section 26's constitutional policy, the Fair Election
Act represents the legislature's compliance with the requirement of Article XIII,
Section 1: "Congress . . . give[s] highest priority to the enactment of measures that.
 39

. . reduce . . . political inequalities ... by equitably diffusing wealth and political e. For each question for which the margin of error is greater than that
power for the common good." reported under paragraph (d), the margin of error for that question; and
f. A mailing address and telephone number, indicating it as an address or
Moreover, the constitutional desire to "guarantee equal access to opportunities for telephone number at which the sponsor can be contacted to obtain a
public service is the same intent that animates the Constitution's investiture in written report regarding the survey in accordance with Subsection 5.3.
COMELEC of the power to "supervise or regulate the enjoyment or utilization of all (Emphasis supplied)
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 Section 5.3 facilitates the inspection, copying, and verification not only of an
instrumentality thereof, including any government-owned or controlled corporation election survey but also of the raw data used as bases for its conclusions:
or its subsidiary."

Specific provisions in the Fair Election Act regulate the means through which 5.3 The survey together with raw data gathered to support its conclusions shall be
candidates for elective public office, as well as political parties and groups available for inspection, copying and verification by the COMELEC or by a
participating in the party-list system, are able to make themselves known to voters, registered political party or a bona fide candidate, or by any COMELEC-accredited
the same means through which they earn votes. citizen's arm. A reasonable fee sufficient to cover the costs of inspection, copying
and verification may be charged.
The Fair Election Act also governs published surveys during elections.
As with all the other provisions of the Fair Election Act, Section 5 is a means to
Section 5.1 defines election surveys-as "the measurement of opinions and guarantee equal access to the deliberative forums essential to win an elective
perceptions of the voters as regards a candidate's popularity, qualifications, public office. Any reading of Section 5 and of its individual components, such as
platforms or a matter of public discussion in relation to the election, including Section 5.2(a), cannot be divorced from this purpose.
voters' preference for candidates or publicly discussed issues during the campaign
period[.]" Sections 5.2 and 5.3 provide regulations that facilitate transparency with The inclusion of election surveys in the list of items regulated by the Fair Election
respect to ' election surveys. Section 5.4[69] is no longer in effect, having been Act is a recognition that election surveys are not a mere descriptive aggregation of
declared unconstitutional in this court's May 5, 2001 Decision in Social Weather data. Publishing surveys are a means to shape the preference of voters, inform
Stations and Kamahalan Publishing Corp. v. COMELEC.[70] Section 5.5[71] pertains the strategy of campaign machineries, and ultimately, affect the outcome of
to exit polls. elections. Election surveys have a similar nature as election propaganda. They are
expensive, normally paid for by those interested in the outcome of elections, and
Section 5.2 enumerates the information that a person publishing an election survey have tremendous consequences on election results.
must publish along with the survey itself:

5.2 During the election period, any person, natural as well as juridical, candidate Views vary on the precise extent to which surveys or "polls" shape voter
or organization who publishes a survey must likewise publish the following preferences, if at all.
information:
Election surveys have been critiqued for amplifying the notion of an election as a
"horse race"[72] and for reducing elections to the lowest common denominator of
a. The name of the person, candidate, party or. organization who percentage points or a candidate's erstwhile share in the vote market rather than
commissioned or paid for the survey; focusing on issues, principles, programs, and platforms.
b. The name of the person, polling firm or survey organization who
conducted the survey; Several possible, albeit conflicting, effects of surveys on voter behavior have been
c. The period during which the survey was conducted, the methodology postulated:
used, including the number of individual respondents and the areas from
which they were selected, and the specific questions asked; First, there is the bandwagon effect where "electors rally to support the candidate
d. The margin of error of the survey; leading in the polls."[73] This "assumes that knowledge of a popular 'tide' will likely
 40

change voting intentions in [favor] of the frontrunner, that many electors feel more
comfortable supporting a popular choice or that people accept the perceived Likewise, it has been argued that the bandwagon effect is but the obverse of the
collective wisdom of others as being enough reason for supporting a candidate."[74] so-called false-consensus effect or false-consensus bias:

Second, there is the underdog effect where "electors rally to support the
candidate trailing in the polls."[75] This shift can be motivated by sympathy for the
perceived underdog.[76]
Third, there is the motivating effect where "individuals who had not intended to
vote are persuaded to do so,"[77] having been alerted to the fact of an election's
imminence.[78]
The bandwagon effect, a form of conformity, is the mirror image of the false
consensus effect, where people misperceive that their own behaviors and attitudes
are more popular than they actually are. In the political domain, one mechanism
underlying the false consensus effect is wishful thinking - people gaining utility from
thinking their candidate is ahead or their opinions are popular. [86]

Fourth, there is also the demotivating effect where "voters abstain from voting The bandwagon effect induced by election surveys assumes even greater
out of certainty that their candidate or party will win[.]"[79] significance in considering the health of a democracy.

Fifth, there are reports of a behavior known as strategic voting where "voting is Integral to our appreciation of democracy is the recognition that democracy is
influenced by the chances of winning[.]" [80] fundamentally deliberative. It is rooted in the exchange and dialogue of ideas.
Accordingly, free expression, not least of all from the minority and from those who
Lastly, there is also the theory of a free-will effect where "voters cast their ballots do not conform, i.e., those who dissent and criticize, is indispensable:
to prove the polls wrong[.]" [81]

Election surveys published during election periods create the "politics of Proponents of the political theory on "deliberative democracy" submit that
expectations."[82] Voters act in accordance with what is perceived to be an existing "substantial, open, [and] ethical dialogue is a critical, and indeed defining, feature
or emerging state of affairs with respect to how candidates are faring. of a good polity." This theory may be considered broad, but it definitely "includes
[a] collective decision making with the participation of all who will be affected by
Of the six (6) effects, the bandwagon effect has a particular resonance and has the decision." It anchors on the principle that the cornerstone of every democracy
been of concern. Surveys, or opinion polls, "by directly influencing individual-level is that sovereignty resides in the people. To ensure order in running the state's
support . . . , can be self-fulfilling prophecies and produce opinion affairs, sovereign powers were delegated and individuals would be elected or
cascades."[83] "[A] poll's prediction may come to pass not only because it measures nominated in key government positions to represent the people. On this note, the
public opinion but also because it may influence public opinion." [84] 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
The bandwagon effect is of particular concern because of the observed human criticize acts made pursuant to governmental functions.
tendency to conform. Three (3) mechanisms through which survey results may
induce conformity have been posited: Speech that promotes dialogue on public affairs, or airs out grievances and political
discontent, should thus be protected and encouraged.

(1) normative social influence, or people's desire to adopt the majority position in
order to feel liked and accepted or believe they are on the winning team;
(2) informational social influence, or people learning from the 'wisdom of crowds'
via social proof because they 'believe that others' interpretation of an ambiguous
situation is more accurate . . . and will help [them] choose an appropriate course
of action'; and
(3) people resolving cognitive dissonance by switching to the side they infer is
going to win based on the poll.[85]
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."
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." 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." [87]

However, "conformity pressures can suppress minority opinion."[88] The
bandwagon effect conjures images of an impregnable majority, thereby tending to
push farther toward the peripheries those who are already marginalized. Worse,
the bandwagon effect foments the illusion of a homogenous monolith denying the
very existence of those in the minority. This undermines the "normative
conceptions of democracy"[89] substituting the democratic dialogue with
acquiescence to perceived or projected orthodoxy.
Surveys, far from being a passive "snapshot of many viewpoints held by a segment
of the population at a given time,"[90] can warp existing public opinion and can
mould public opinion. They are constitutive. Published election surveys offer
valuable insight into public opinion not just because they represent it but more so
because they also tend to make it.
Appreciating this tendency to both entrench and marginalize is of acute relevance
in the context of Philippine political reality. This is the same reality that our
policymakers, primarily the framers of the Constitution, have seen fit to address.
The main criterion for a Senate seat is now name recall. This is where celebrities
have the edge even over older political families with bankable names.
The diminishing clout of old families in the Senate and their continued dominance
in the House shows the push and pull of two contrary tendencies. The first
tendency is toward the new: The importance of name recall in national elections
taking place in a media-inundated environment makes it easier for movie and
media personalities, and harder for old-style politicians, to be elected. The second
tendency is veering toward the old: At the district level, trapo-style patronage and
machine politics remain deeply entrenched, giving political families the edge in
elections.
Certainly, it is not the business of this court to engage in its own determination of
the wisdom of policy. Nevertheless, having to grapple with the tasks of adjudication
and interpretation, it has become necessary to bring to light the intent that underlies
the disputed statutory provision, as well as the constitutional regime and social
context, in which this provision is situated.
To reiterate, the inclusion of published election surveys in a statute that regulates
election propaganda and other means through which candidates may shape voter
preferences is itself telling of the recognition that published election surveys, too,
may influence voter preferences. This inclusion is similarly telling of a recognition
that, left unregulated, election surveys can undermine the purposes of ensuring
"fair" elections. These recognitions are embedded in the Fair Election Act; they are
not judicial constructs. In adjudicating with these' as bases, this court is merely
adhering to the legislative imperative.
41
X
It is necessary that the Fair Election Act be appreciated for what it is: a mechanism
for ensuring equality. The Fair Election Act is a means to effect the "necessary
condition" to a genuine democratic dialogue, to realizing a deliberative democracy.
The concept of this "necessary condition" was previously considered by this court
in Diocese of Bacolod v. COMELEC:[100]
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
"protecting] the already established machinery of discrimination." 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.
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 selfi-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 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.
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'." He submits that "[different 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."
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." 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."[101]
What is involved here is petitioners' freedom of speech and of expression,
that is, to publish their findings. More specifically, what is involved here is
their right to political speech, that which "refers to speech 'both intended
and received as a contribution to public deliberation about some issue,'
'foster[ing] informed and civic-minded deliberation."[
The nature of the speech involved, as well as the Fair Election Act's purpose
of ensuring political equality, calls into operation the equality-based
approach to weighing liberty to express vis-a-vis equality of opportunities.
As explained in Diocese of Bacolod:[103]
In an equality-based approach, "politically disadvantaged speech prevails over
regulation[,] but regulation promoting political equality prevails over speech." 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. 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.
. . . speech that, taken as a whole, has for its principal object the endorsement of a
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. [104]
42
The required judicial temperament in appraising speech in the context of electoral
campaigns which is principally designed to endorse a candidate, both by
candidates and / or political parties, on the one hand, and private citizens, on the
other, has thus been articulated:
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
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
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.[105] [Emphasis in the original]
X
Election surveys, on their face, do not state or allude to preferred candidates. As
a means, election surveys are ambivalent. To an academician, they are an
aggrupation of data. To a journalist, they are matters for reportage. To a historian,
they form part of a chronicle. Election surveys thus become unambiguous only
when viewed in relation to the end for which they are employed. To those whose
end is to get a candidate elected, election surveys, when limited to their own private
consumption, are a means to formulate strategy. When published, however, the
tendency to shape voter preferences comes into play. In this respect, published

election surveys partake of the nature of election propaganda. It is then declarative
speech in the context of an electoral campaign properly subject to regulation.
Hence, Section 5.2 of the Fair Election Act's regulation of published surveys.
We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the
names of subscribers to election surveys in light of the requisites for valid
regulation of declarative speech by private entities in the context of an election
campaign:
First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of
subscribers among those persons who "paid for the survey[.]"[106] Thus, Resolution
No. 9674 is a regulation finding basis in statute.
COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those
who "commissioned" and those who "paid for" the published survey are separated
by the disjunctive term "or."[107] This disassociates those who "commissioned" from
those who "paid for" and identifies them as alternatives to each other. [108] Section
5.2(a) thus requires the disclosure of two (2) classes of persons: "[first,] those who
commissioned or sponsored the survey; and [second,] those who paid for the
survey."[109]
The second class makes no distinction between those who pay for a specific
survey and those who pay for election surveys in general. Indeed, subscribers do
not escape the burden of paying for the component articles comprising a
subscription. They may pay for them in aggregate, but they pay for them just the
same. From the text of Section 5.2(a), the legislative intent or regulatory concern
is clear: "those who have financed, one way or another, the [published]
survey"[110] must be disclosed.
Second, not only an important or substantial state interest but even a compelling
one reasonably grounds Resolution No. 9674's inclusion of subscribers to election
surveys. Thus, regardless of whether an intermediate or a strict standard is used,
Resolution No. 9674 passes scrutiny.
It is settled that constitutionally declared principles are a compelling state interest:
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, constitute a substantial
and compelling government interest in regulating . . . utterances in TV
broadcast."[111]
Here, we have established that the regulation of election surveys effects the
constitutional policy, articulated in Article II, Section 26, and reiterated and affirmed
in Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution, of
"guarantee[ing] equal access to opportunities for public service[.]" [112]
43
Resolution No. 9674 addresses the reality that an election survey is formative as
it is descriptive. It can be a means to shape the preference of voters and, thus, the
outcome of elections. In the hands of those whose end is to get a candidate
elected, it is a means for such end and partakes of the nature of election
propaganda. Accordingly, the imperative of "fair" elections impels their regulation.
Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing
the opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression"[113] and is "demonstrably the least restrictive means
to achieve that object."[114]
While it does regulate expression (i.e., petitioners' publication of election
surveys), it does not go so far as to suppress desired expression. There is
neither prohibition nor censorship specifically aimed at election surveys.
The freedom to publish election surveys remains. All Resolution No. 9674
does is articulate a regulation as regards the manner of publication, that is,
that the disclosure of those who commissioned and/or paid for, including
those subscribed to, published election surveys must be made.
G. Speech, Courts, and Contempt
23. SOCIAL WEATHER STATIONS, INC. VS. ASUNCION
FACTS: Published under the by-line of one Marichu Villanueva and titled
“Judiciary worse than PNP,” an item in the June 17, 1993 issue of the Manila
Standard, a metropolitan daily, reported that the results of the latest opinion polls
conducted by the Ateneo Social Weather Station, as Social Weather Stations, Inc.
(or SWS) is also known, showed the Judiciary to have an even lower satisfaction
rating that the Philippine National Police. The item went on to state that the
President and his Cabinet had been briefed on the results of the survey by
Professors Mahar Mangahas and Felipe Miranda of the SWS, and that
Malacanang had expressed concern over the Judiciary’s law standing. Press
Secretary Jesus Sison was also quoted as saying that this was “most puzzling,”
although he could not, recall the exact rating, noting only that the PNP had “a better
image that the judiciary.”
Said report appears to have prompted Judge Maximiano C. Asuncion,
presiding judge of Branch 104 of the Regional Trial Court at Quezon City, motu
proprio to initiate on the same date of June 17, 1993 proceedings ordering the
President of the SWS to: “explain why you should not be held in contempt for
distributing to the general public without prior permission from any court your
findings that the people have more confidence with the police than with judges
thereby tending directly or indirectly to degrade the administration of justice”.
On June 21, 1993, Prof. Mahar Mangahas through Atty. Antonio M. Abad,
Jr. submitted his comment and explanation that it was not true that the Social

Weather Stations, Inc. distributed to the general public the alleged survey. Said
survey was privately given to Pres. Ramos and the cabinet and was not intended
for publication nor for public consumption and that if ever it reaches the media, he
had not authorized anyone to do so.
The hearing was had a scheduled on June 23, 1993, after which Judge
Asuncion promulgated an Order dated July 2, 1993, finding Professor Mangahas’
explanation satisfactory and dismissing the contempt charge against him.
After three weeks or so, or more precisely on July 26, 1993, Professor
Mangahas addressed a letter to the Chief Justice intended “as a formal complaint
against Honorable Maximiano C. Asuncion for grave abuse of authority and gross
ignorance of the law, in connection with his issuance of an Order dated 17 June
1993.
ISSUE: Whether the Order dated 17 June 1993 is violative of the constitutional
guarantees of freedom of speech and freedom from prior restraint.
HELD:
No. What was clearly implicit in the newspaper report about the results of
the SWS poll - in the words of Judge Asuncion, “that the people have more
confidence with the police than with the judges” – in light of the fact, of which
judicial notice is taken, that said report came out at a time when there already was
widespread publicity adverse to the judiciary, there can be no doubt of its clear
tendency to degrade the administration of justice.
Thus, Judge Asuncion can hardly be faulted for what, at a minimum, he
must have felt duty-bound to do in the circumstances. No question of prior
restraint or violation of the guarantee of free speech arises here, what he did
being, in essence, merely to initiate an inquiry into the source and basis of
the derogatory news report. And he forthwith abated the proceedings upon
receiving an explanation he deemed satisfactory.
Upon the facts, and under applicable law and principle, the complaint fails
to make a prima facie showing of the charges made therein, and must perforce be
as it is hereby, DISMISSED.
24. RE: LETTER OF UP LAW FACULTY ENTITLED “RESTORING
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF
THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT”
Speech, Courts and Contempt
Facts:
44
Associate Justice Mariano Del Castillo (Justice Del Castillo) wrote the
ponencia of Vinuya, et al. vs. Executive Secretary, promulgated on April 28, 2010.
The counsel for the Vinuya case (called “the Malaya Lolas”) filed a Motion for
Reconsideration of the decision, raising that the constitutional and jurisprudential
histories reject the Court’s assertion that the Executive’s foreign policy
prerogatives are virtually unlimited, and that the Court confused diplomatic
protection with the broader, if fundamental, responsibility of states to protect the
human rights of its citizens – especially where the rights asserted are subject of
erga omnes obligations and pertain to jus cogens norms. In July 19, 2010, the
counsel filed a Supplemental Motion for Reconsideration, where they posited the
issue of plagiarism for the first time as grounds for reconsideration.
According to the counsel for the Malaya Lolas who are Atty. Roque and
Atty. Bagares, Justice Castillo was said to have plagiarized from three sources.
The works allegedly plagiarized in the Vinuya decision were namely: (1) Evan J.
Criddle and Evan Fox-Decent’s article "A Fiduciary Theory of Jus Cogens;" (2)
Christian J. Tams’ book Enforcing Erga Omnes Obligations in International Law;
and (3) Mark Ellis’ article "Breaking the Silence: On Rape as an International
Crime." Furthermore, the counsel assert that Justice Del Castillo made it appear
that these sources support the judgment’s arguments for dismissing the instant
petition when in truth, the plagiarized sources even make a strong case for the
petition’s claims.
Several articles came out about the alleged plagiarism from writings
about comfort women, and that the authors had no idea that their works were
plagiarized and were not acknowledged. One of the authors, Dr. Mark Ellis, even
sent a letter to the Court over his concern about a part of his work’s arguments
being misread by the Court and was employed for cross purposes and had
suggested the Court to carefully study the arguments he made.
On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines College of
Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court"
(the Statement), was posted in Newsbreak’s website and on Atty. Roque’s blog. n
August 11, 2010, Dean Leonen submitted a copy of the Statement of the University
of the Philippines College of Law Faculty (UP Law Faculty) to the Court, through
Chief Justice Renato C. Corona (Chief Justice Corona).
The letter reads:

RESTORING INTEGRITY
A STATEMENT BY THE FACULTY OF
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW
ON THE ALLEGATIONS OF PLAGIARISM AND
MISREPRESENTATION
IN THE SUPREME COURT
An extraordinary act of injustice has again been committed against the
brave Filipinas who had suffered abuse during a time of war. After they
courageously came out with their very personal stories of abuse and suffering
as "comfort women", waited for almost two decades for any meaningful relief
from their own government as well as from the government of Japan, got their
hopes up for a semblance of judicial recourse in the case of Vinuya v. Executive
Secretary, G.R. No. 162230 (28 April 2010), they only had these hopes crushed
by a singularly reprehensible act of dishonesty and misrepresentation by the
Highest Court of the land.
It is within this frame that the Faculty of the University of the Philippines
College of Law views the charge that an Associate Justice of the Supreme Court
committed plagiarism and misrepresentation in Vinuya v. Executive Secretary.
The plagiarism and misrepresentation are not only affronts to the individual
scholars whose work have been appropriated without correct attribution, but
also a serious threat to the integrity and credibility of the Philippine Judicial
System.
In common parlance, ‘plagiarism’ is the appropriation and
misrepresentation of another person’s work as one’s own. In the field of writing,
it is cheating at best, and stealing at worst. It constitutes a taking of someone
else’s ideas and expressions, including all the effort and creativity that went into
committing such ideas and expressions into writing, and then making it appear
that such ideas and expressions were originally created by the taker. It is
dishonesty, pure and simple. A judicial system that allows plagiarism in any form
is one that allows dishonesty. Since all judicial decisions form part of the law of
the land, to allow plagiarism in the Supreme Court is to allow the production of
laws by dishonest means. Evidently, this is a complete perversion and
falsification of the ends of justice.
A comparison of the Vinuya decision and the original source material
shows that the ponente merely copied select portions of other legal writers’
works and interspersed them into the decision as if they were his own, original
work. Under the circumstances, however, because the Decision has been
promulgated by the Court, the Decision now becomes the Court’s and no longer
just the ponente’s. Thus, the Court also bears the responsibility for the Decision.
In the absence of any mention of the original writers’ names and the publications
from which they came, the thing speaks for itself.
45
So far there have been unsatisfactory responses from the ponente of
this case and the spokesman of the Court.
It is argued, for example, that the inclusion of the footnotes from the
original articles is a reference to the ‘primary’ sources relied upon. This cursory
explanation is not acceptable, because the original authors’ writings and the
effort they put into finding and summarizing those primary sources are precisely
the subject of plagiarism. The inclusion of the footnotes together with portions
of their writings in fact aggravates, instead of mitigates, the plagiarism since it
provides additional evidence of a deliberate intention to appropriate the original
authors’ work of organizing and analyzing those primary sources.
It is also argued that the Members of the Court cannot be expected to
be familiar with all legal and scholarly journals. This is also not acceptable,
because personal unfamiliarity with sources all the more demands correct and
careful attribution and citation of the material relied upon. It is a matter of
diligence and competence expected of all Magistrates of the Highest Court of
the Land.
But a far more serious matter is the objection of the original writers,
Professors Evan Criddle and Evan Fox-Descent, that the High Court actually
misrepresents the conclusions of their work entitled "A Fiduciary Theory of Jus
Cogens," the main source of the plagiarized text. In this article, they argue that
the classification of the crimes of rape, torture, and sexual slavery as crimes
against humanity have attained the status of jus cogens, making it obligatory
upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the
Vinuya decision uses parts of the same article to arrive at the contrary
conclusion. This exacerbates the intellectual dishonesty of copying works
without attribution by transforming it into an act of intellectual fraud by copying
works in order to mislead and deceive.
The case is a potential landmark decision in International Law,
because it deals with State liability and responsibility for personal injury and
damage suffered in a time of war, and the role of the injured parties’ home
States in the pursuit of remedies against such injury or damage. National courts
rarely have such opportunities to make an international impact. That the
petitioners were Filipino "comfort women" who suffered from horrific abuse
during the Second World War made it incumbent on the Court of last resort to
afford them every solicitude. But instead of acting with urgency on this case, the
Court delayed its resolution for almost seven years, oblivious to the deaths of
many of the petitioners seeking justice from the Court. When it dismissed the
Vinuya petition based on misrepresented and plagiarized materials, the Court
decided this case based on polluted sources. By so doing, the Supreme Court
added insult to injury by failing to actually exercise its "power to urge and exhort
the Executive Department to take up the claims of the Vinuya petitioners. Its
callous disposition, coupled with false sympathy and nonchalance, belies a
more alarming lack of concern for even the most basic values of decency and

respect. The reputation of the Philippine Supreme Court and the standing of the
Philippine legal profession before other Judiciaries and legal systems are truly
at stake.
The High Court cannot accommodate less than absolute honesty in its
decisions and cannot accept excuses for failure to attain the highest standards
of conduct imposed upon all members of the Bench and Bar because these
undermine the very foundation of its authority and power in a democratic
society. Given the Court’s recent history and the controversy that surrounded it,
it cannot allow the charges of such clear and obvious plagiarism to pass without
sanction as this would only further erode faith and confidence in the judicial
system. And in light of the significance of this decision to the quest for justice
not only of Filipino women, but of women elsewhere in the world who have
suffered the horrors of sexual abuse and exploitation in times of war, the Court
cannot coldly deny relief and justice to the petitioners on the basis of pilfered
and misinterpreted texts.
The Court cannot regain its credibility and maintain its moral authority
without ensuring that its own conduct, whether collectively or through its
Members, is beyond reproach. This necessarily includes ensuring that not only
the content, but also the processes of preparing and writing its own decisions,
are credible and beyond question. The Vinuya Decision must be conscientiously
reviewed and not casually cast aside, if not for the purpose of sanction, then at
least for the purpose of reflection and guidance. It is an absolutely essential step
toward the establishment of a higher standard of professional care and practical
scholarship in the Bench and Bar, which are critical to improving the system of
administration of justice in the Philippines. It is also a very crucial step in
ensuring the position of the Supreme Court as the Final Arbiter of all
controversies: a position that requires competence and integrity completely
above any and all reproach, in accordance with the exacting demands of judicial
and professional ethics.
With these considerations, and bearing in mind the solemn duties and
trust reposed upon them as teachers in the profession of Law, it is the opinion
of the Faculty of the University of the Philippine College of Law that:
(1) The plagiarism committed in the case of Vinuya v. Executive
Secretary is unacceptable, unethical and in breach of the high standards of
moral conduct and judicial and professional competence expected of the
Supreme Court;
(2) Such a fundamental breach endangers the integrity and credibility
of the entire Supreme Court and undermines the foundations of the Philippine
judicial system by allowing implicitly the decision of cases and the establishment
of legal precedents through dubious means;
46
(3) The same breach and consequent disposition of the Vinuya case
does violence to the primordial function of the Supreme Court as the ultimate
dispenser of justice to all those who have been left without legal or equitable
recourse, such as the petitioners therein;
(4) In light of the extremely serious and far-reaching nature of the
dishonesty and to save the honor and dignity of the Supreme Court as an
institution, it is necessary for the ponente of Vinuya v. Executive Secretary to
resign his position, without prejudice to any other sanctions that the Court may
consider appropriate;
(5) The Supreme Court must take this opportunity to review the
manner by which it conducts research, prepares drafts, reaches and finalizes
decisions in order to prevent a recurrence of similar acts, and to provide clear
and concise guidance to the Bench and Bar to ensure only the highest quality
of legal research and writing in pleadings, practice, and adjudication.
Malcolm Hall, University of the Philippines College of Law, Quezon
City, 27 July 2010.
(NOTE: I just placed the entire letter here in case he asks about it; underlined are
parts are their opinions about Supreme Court which are relevant to the case)
The letter did not contain the signatures of the signatories, but only with
the name of the UP Law professors with the notation (SGD.) before each name.
The Court then directed 37 of the faculty members to show cause, within
ten (10) days from receipt of the copy of the Resolution, why they should not be
disciplined as members of the Bar. They complied jointly later on.
In paragraphs 28 to 30 of the Common Compliance, respondents briefly
discussed their position that in issuing their Statement, "they should be seen as
not only to be performing their duties as members of the Bar, officers of the court,
and teachers of law, but also as citizens of a democracy who are constitutionally
protected in the exercise of free speech, and in paragraphs 31 to 34, the faculty
members asserted that their Statement was also issued in the exercise of their
academic freedom as teachers in an institution of higher learning. They relied on
Section 5 of the University of the Philippines Charter of 2008 which provided that
"[t]he national university has the right and responsibility to exercise academic
freedom." They likewise adverted to Garcia v. The Faculty Admission Committee,
Loyola School of Theology which they claimed recognized the extent and breadth
of such freedom as to encourage a free and healthy discussion and communication
of a faculty member’s field of study without fear of reprisal. It is the faculty

members’ view that had they remained silent on the plagiarism issue in the Vinuya
decision they would have "compromised [their] integrity and credibility as teachers;
[their silence] would have created a culture and generation of students,
professionals, even lawyers, who would lack the competence and discipline for
research and pleading; or, worse, [that] their silence would have communicated to
the public that plagiarism and misrepresentation are inconsequential matters and
that intellectual integrity has no bearing or relevance to one’s conduct."
Issue:
1. Whether the Show Cause Resolution deny respondents their freedom of
expression.
2. Whether the Show Cause Resolution violate respondents’ academic
freedom as law professors.
Held:
1. No, the Show Cause Resolution does not deny respondents their
freedom of expression.
The Courts may also express sensitivity at times to their delicate and
important role in the society such that they feel the need to preserve the kind of
respect and dignity that they should deserve in order that they could effectively
continue to discharge their critical function of dissenting justice.
The collective claim of the respondents that the Court, with the issuance
of the Show Cause Resolution, has interfered with respondents’ constitutionally
mandated right to free speech and expression, is untenable. They assert the
misconception that the Court is denying them the right to criticize the Court’s
decisions and actions, and that this Court seeks to "silence" respondent law
professors’ dissenting view on what they characterize as a "legitimate public
issue."
The Court says that it is not the case. A reading of the Show Cause
Resolution will plainly show that it was neither the fact that respondents had
criticized a decision of the Court nor that they had charged one of its members of
plagiarism that motivated the said Resolution. It was the manner of the criticism
and the contumacious language by which respondents, who are not parties nor
counsels in the Vinuya case, have expressed their opinion in favor of the
petitioners in the said pending case for the "proper disposition" and consideration
of the Court that gave rise to said Resolution. The Show Cause Resolution
painstakingly enumerated the statements that the Court considered excessive and
uncalled for under the circumstances surrounding the issuance, publication, and
47
later submission to this Court of the UP Law Faculty’s Restoring Integrity
Statement.
The publication of a statement by the faculty of the UP College of Law
regarding the allegations of plagiarism and misrepresentation in the Supreme
Court was totally unnecessary, uncalled for and a rash act of misplaced vigilance.
Of public knowledge is the ongoing investigation precisely to determine the truth
of such allegations. More importantly, the motion for reconsideration of the decision
alleged to contain plagiarized materials is still pending before the Court. We made
it clear in the case of In re Kelly, that any publication, pending a suit, reflecting
upon the court, the jury, the parties, the officers of the court, the counsel with
reference to the suit, or tending to influence the decision of the controversy, is
contempt of court and is punishable.
While most agree that the right to criticize the judiciary is critical to
maintaining a free and democratic society, there is also a general consensus that
healthy criticism only goes so far. Many types of criticism leveled at the judiciary
cross the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition of
its business in an orderly manner, free from outside interference obstructive of its
functions and tending to embarrass the administration of justice."
It was not the circumstance that respondents expressed a belief that
Justice Del Castillo was guilty of plagiarism but rather their expression of that belief
as "not only as an established fact, but a truth" when it was "of public knowledge
[that there was] an ongoing investigation precisely to determine the truth of such
allegations." The Show Cause Resolution made no objections to the portions of
the Restoring Integrity Statement that respondents claimed to be "constructive" but
only asked respondents to explain those portions of the said Statement that by no
stretch of the imagination could be considered as fair or constructive.
The Show Cause Resolution also recognized the respondents’ freedom
of expression. (While most agree that the right to criticize the judiciary is critical to
maintaining a free and democratic society, there is also a general consensus that
healthy criticism only goes so far. Many types of criticism leveled at the judiciary
cross the line to become harmful and irresponsible attacks. These potentially
devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition of
its business in an orderly manner, free from outside interference obstructive of its
functions and tending to embarrass the administration of justice.")

2. No, the Show Cause Resolution does not interfere with respondents’
academic freedom.
It is not contested that respondents herein are, by law and jurisprudence,
guaranteed academic freedom and undisputably, they are free to determine what
they will teach their students and how they will teach. We must point out that there
is nothing in the Show Cause Resolution that dictates upon respondents the
subject matter they can teach and the manner of their instruction. Moreover, it is
not inconsistent with the principle of academic freedom for this Court to subject
lawyers who teach law to disciplinary action for contumacious conduct and speech,
coupled with undue intervention in favor of a party in a pending case, without
observing proper procedure, even if purportedly done in their capacity as teachers.
A novel issue involved in the present controversy, for it has not been
passed upon in any previous case before this Court, is the question of whether
lawyers who are also law professors can invoke academic freedom as a defense
in an administrative proceeding for intemperate statements tending to pressure the
Court or influence the outcome of a case or degrade the courts.
Applying by analogy the Court’s past treatment of the "free speech"
defense in other bar discipline cases, academic freedom cannot be successfully
invoked by respondents in this case. The implicit ruling in the jurisprudence
discussed above is that the constitutional right to freedom of expression of
members of the Bar may be circumscribed by their ethical duties as lawyers to give
due respect to the courts and to uphold the public’s faith in the legal profession
and the justice system. To our mind, the reason that freedom of expression may
be so delimited in the case of lawyers applies with greater force to the academic
freedom of law professors.
25. FORTUN VS QUINSAYAS
Facts:
In November 2010, Atty. Quinsayas, et al. filed a disbarment complaint against
petitioner before this Court, docketed as Bar Matter No. A.C. 8827. The disbarment
case is still pending.
Petitioner alleged that on 22 November 2010, GMA News TV internet website
posted an article, written by Dedace, entitled "Mangudadatu, others seek
disbarment of Ampatuan lawyer," a portion of which reads:
48
On Monday, Maguindanao Governor Esmael "Toto" Mangudadatu and four others
filed a 33 page complaint against lawyer Sigrid Fortun whom they accused of
"engaging in every conceivable chichancery or artifice to unduly delay the
proceedings by using and abusing legal remedies available."
On even date, Inquirer.net, the website of PDI, also published an article, written by
Torres, which according to petitioner also stated details of the disbarment case, as
follows:
"Respondent Atty. Fortun had astutely embarked in an untiring quest to obstruct,
impede and degrade the administration of justice by filing countless causes of
action, all in the hope of burying the principal issue of his client’s participation or
guilt in the murder of 57 people that ill-fated day of November 23, 2009," the
petitioners said.
Petitioner further alleged that on 23 November 2010, PhilStar published an article,
written by Punay, which gave details of the disbarment allegations, thus:
"Attorney Fortun used and abused legal remedies available and allowed under
under the rules, muddled the issues and diverted the attention away from the main
subject matter of the cases, read the complaint.
***** ***** *****
"Respondent Attorney Fortun’s act of misleading the prosecution and trial court is
a dishonest/deceitful conduct violative of Code of Professional Responsibility,"
read the complaint.
"In so doing, he diminished the public confidence in the law and the legal
profession, rendering him unfit to be called a member of the Bar."
Further, petitioner alleged that on 23 November 2010, Channel 23 aired on national
television a program entitled "ANC Presents: Crying for Justice: the Maguindanao
Massacre." Drilon, the program’s host, asked questions and allowed Atty.
Quinsayas to discuss the disbarment case against petitioner, including its principal
points. Petitioner was allegedly singled out and identified in the program as the
lead counsel of the Ampatuan family.
Petitioner alleged that Atty. Quinsayas, et al. actively disseminated the details of
the disbarment complaint against him in violation of Rule 139-B of the Rules of
Court on the confidential nature of disbarment proceedings. Petitioner further
alleged that respondent media groups and personalities conspired with Atty.
Quinsayas, et al. by publishing the confidential materials on their respective media

platforms. Petitioner pointed out that Drilon discussed the disbarment complaint
with Atty. Quinsayas in a television program viewed nationwide.
Petitioner alleged that the public circulation of the disbarment complaint against
him exposed this Court and its investigators to outside influence and public
interference. Petitioner alleged that opinion writers wrote about and commented
on the disbarment complaint which opened his professional and personal
reputation to attack. He alleged that the purpose of respondents in publishing the
disbarment complaint was to malign his personal and professional reputation,
considering the following: (1) the bases of the charges were not new but were
based on incidents that supposedly took place in January 2010; (2) it was timed to
coincide with the anniversary of the Maguindanao Massacre to fuel hatred,
contempt and scorn for Ampatuan, Jr. and his counsel and violated the accused’s
right to presumption of innocence and due process; (3) it was published following
articles written about petitioner’s advocacy for the rights of an accused and
negated the impact of these articles on the public; and (4) respondents knew that
the charges were baseless as petitioner always opted for speedy trial and
protection of the accused’s rights at trial. Petitioner further alleged that in
announcing their "causes of action" in the disbarment case, respondents were only
seeking the approval and sympathy of the public against him and Ampatuan, Jr.
Issue:
Whether respondents violated the confidentiality rule in disbarment proceedings,
warranting a finding of guilt for indirect contempt of court.
Ruling:
Section 18, Rule 139-B of the Rules of Court provides:
Section 18. Confidentiality. - Proceedings against attorneys shall be private and
confidential. However, the final order of the Supreme Court shall be published like
its decisions in other cases.
The Court explained the purpose of the rule, as follows:
x x x. The purpose of the rule is not only to enable this Court to make its
investigations free from any extraneous influence or interference, but also to
protect the personal and professional reputation of attorneys and judges from the
baseless charges of disgruntled, vindictive, and irresponsible clients and litigants;
it is also to deter the press from publishing administrative cases or portions thereto
without authority. We have ruled that malicious and unauthorized publication or
verbatim reproduction of administrative complaints against lawyers in newspapers
by editors and/or reporters may be actionable. Such premature publication
constitutes a contempt of court, punishable by either a fine or imprisonment or both
at the discretion of the Court. x x x
49
While the present case involves an incident of contempt the same is akin to a case
of libel for both constitute limitations upon freedom of the press or freedom of
expression guaranteed by our Constitution. So what is considered a privilege in
one may likewise be considered in the other. The same safeguard should be
extended to one whether anchored in freedom of the press or freedom of
expression. Therefore, this principle regarding privileged communications can also
be invoked in favor of appellant.
The Court recognizes that "publications which are privileged for reasons of public
policy are protected by the constitutional guaranty of freedom of speech." As a
general rule, disbarment proceedings are confidential in nature until their final
resolution and the final decision of this Court. In this case, however, the filing of a
disbarment complaint against petitioner is itself a matter of public concern
considering that it arose from the Maguindanao Massacre case. The interest of the
public is not on petitioner himself but primarily on his involvement and participation
as defense counsel in the Maguindanao Massacre case. Indeed, the allegations in
the disbarment complaint relate to petitioners supposed actions involving the
Maguindanao Massacre case.
The Maguindanao Massacre is a very high-profile case. Of the 57 victims of the
massacre, 30 were journalists. It is understandable that any matter related to the
Maguindanao Massacre is considered a matter of public interest and that the
personalities involved, including petitioner, are considered as public figure. The
Court explained it, thus:
But even assuming a person would not qualify as a public figure, it would not
necessarily follow that he could not validly be the subject of a public comment. For
he could; for instance, if and when he would be involved in a public issue. If a
matter is a subject of public or general interest, it cannot suddenly become less so
merely because a private individual is involved or because in some sense the
individual did not voluntarily choose to become involved. The public’s primary
interest is in the event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not the participant’s
prior anonymity or notoriety.
Since the disbarment complaint is a matter of public interest, legitimate media had
a right to publish such fact under freedom of the press. The Court also recognizes
that respondent media groups and personalities merely acted on a news lead they
received when they reported the filing of the disbarment complaint.
The distribution by Atty. Quinsayas to the media of the disbarment complaint, by
itself, is not sufficient to absolve the media from responsibility for violating the
confidentiality rule. However, since petitioner is a public figure or has become a
public figure because he is representing a matter of public concern, and because
the event itself that led to the filing of the disbarment case against petitioner is a
matter of public concern, the media has the right to report the filing of the

disbarment case as legitimate news. It would have been different if the disbarment
case against petitioner was about a private matter as the media would then be
bound to respect the confidentiality provision of disbarment proceedings under
Section 18, Rule 139-B of the Rules of Court.
Section 18, Rule 139-B of the Rules of Court is not a restriction on the freedom of
the press. If there is a legitimate public interest, media is not prohibited from
making a fair, true, and accurate news report of a disbarment complaint. In the
absence of a legitimate public interest in a disbarment complaint, members of the
media must preserve the confidentiality of disbarment proceedings during its
pendency. Disciplinary proceedings against lawyers must still remain private and
confidential until their final determination. Only the final order of this Court shall be
published like its decisions in other cases.
Petitioner also failed to substantiate his claim that respondent media groups and
personalities acted in bad faith and that they conspired with one another in their
postings and publications of the filing of a disbarment complaint against him.
Respondent media groups and personalities reported the filing of the disbarment
complaint without any comments or remarks but merely as it was – a news item.
Petitioner failed to prove that respondent media groups and personalities acted
with malicious intent. Respondent media groups and personalities made a fair and
true news report and appeared to have acted in good faith in publishing and posting
the details of the disbarment complaint. In the televised broadcast of the
commemoration of the Maguindanao Massacre over ANC, the disbarment case
was briefly discussed but petitioner was not named. There was also no proof that
respondent media groups and personalities posted and published the news to
influence this Court on its action on the disbarment case or to deliberately destroy
petitioner’s reputation.
Atty. Quinsayas is bound by Section 18, Rule 139-B of the Rules of Court both as
a complainant in the disbarment case against petitioner and as a lawyer. As a
lawyer and an officer of the Court, Atty. Quinsayas is familiar with the confidential
nature of disbarment proceedings. However, instead of preserving its
confidentiality, Atty. Quinsayas disseminated copies of the disbarment complaint
against petitioner to members of the media which act constitutes contempt of court
WHEREFORE, SC find Atty. Prima Jesusa B. Quinsayas GUILTY of indirect
contempt for distributing copies of the disbarment complaint against Atty. Philip
Sigfrid A. Fortun to members of the media and we order her to pay a FINE of
Twenty Thousand Pesos (P20,000).
H. Commercial Speech
26. Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc.
50
(US CONSTI AMENDMENT 1- Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.)
FACTS:
The plaintiff-appellees in this case attack, as violative of the First and Fourteenth
Amendments,' that portion
of § 54-524.35 of Va. Code Ann. (1974), which provides that a pharmacist
licensed in Virginia is guilty of unprofessional conduct if he "(3) publishes,
advertises or promotes, directly or indirectly, in any manner whatsoever, any
amount, price, fee, premium, discount, rebate or credit terms . .. for any drugs
which may be dispensed only by prescription." The three-judge District Court
declared the quoted portion of the statute "void and of no effect," and enjoined
the defendant-appellants, the Virginia State Board of Pharmacy and the
individual members of that Board, from enforcing it.
Plaintiffs were an individual Virginia resident, who used prescription drugs on a
daily basis, and two nonprofit organizations. Plaintiffs claimed U.S. Constitutional
amendment 1(about free speech) entitled the user of prescription drugs to
receive advertising and promotional information from pharmacists concerning the
prices of prescription drugs. Defendants, Virginia State Board of Pharmacy
(Board) and the individual Board members, were against commercial advertising
of prescription drug information as defendants were concerned with maintaining
the integrity of the profession.
The defendants contend that the advertisement of prescription drug prices is
outside the protection of the First Amendment because it is "commercial speech."
There can be no question that in past decisions the Court has given some
indication that commercial speech is unprotected.
Issue:
Is a statutory ban on advertising prescription drug prices by licensed pharmacists
a violation of "commercial speech" under the First Amendment?
Ruling:
Yes. In a 7-to-1 opinion, the Court held that the First Amendment protects willing
speakers and willing listeners equally. The Court noted that in cases of
commercial speech, such as price advertising, freedom of speech protections
apply just as they would to noncommercial speech. Even speech that is sold for
profit, or involves financial solicitations, is protected. The Court concluded that
although the Virginia State Board of Pharmacy has a legitimate interest in

preserving professionalism among its members, it may not do so at the expense
of public knowledge about lawful competitive pricing terms.
27. Pharmaceutical and Health Care Association of the Philippines vs.
Duque III
Facts:
Before the Court is a petition for certiorari, seeking to nullify Administrative
Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The “Milk Code,”
Relevant International Agreements, Penalizing Violations Thereof, and for Other
Purposes (RIRR).
Petitioner Pharmaceutical and Health Care Association of the Philippines
posits that the RIRR is not valid as it contains provisions that are not constitutional
and go beyond the law it is supposed to implement. Respondents are the Health
Secretary, Under-secretaries, and Assistant Secretaries of the Department of
Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as
a co-respondent since respondents issued the questioned RIRR in their capacity
as officials of said executive agency.
Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino by the legislative powers granted to the president under the Freedom
Constitution. One of the preambular clauses of the Milk Code states that the law
seeks to give effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly
(WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights
of the Child. Article 24 of said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are informed of the
advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to
take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk substitutes, filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a Temporary Restraining Order (TRO)
or Writ of Preliminary Injunction.
Issue (on commercial speech): Whether the labeling requirements and the
advertising regulations under the RIRR are valid.
51
Ruling:
It is invalid. To resolve the question of whether the labeling requirements
and advertising regulations under the RIRR are valid, the Supreme Court held that
it is important to deal first with the nature, purpose, and depth of the regulatory
powers of the DOH, as defined in general under the 1987 Administrative Code,47
and as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and
certain other administrative agencies) in exercise of police powers delegated to it.
The sheer span of jurisprudence on that matter precludes the need to further
discuss it.48 However, health information, particularly advertising materials on
apparently non-toxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the DOH.
As early as the 1917 Revised Administrative Code of the Philippine
Islands, health information was already within the ambit of the regulatory powers
of the predecessor of DOH. Section 938 thereof charged it with the duty to protect
the health of the people, and vested it with such powers as “(g) the dissemination
of hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and
combating dangerous communicable diseases.”
Seventy years later, the 1987 Administrative Code tasked respondent
DOH to carry out the state policy pronounced under Section 15, Article II of the
1987 Constitution, which is “to protect and promote the right to health of the people
and instill health consciousness among them.” To that end, it was granted under
Section 3 of the Administrative Code the power to “(6) propagate health information
and educate the population on important health, medical and environmental
matters which have health implications.”
When it comes to information regarding nutrition of infants and young
children, however, the Milk Code specifically delegated to the Ministry of Health
(hereinafter referred to as DOH) the power to ensure that there is adequate,
consistent and objective information on breastfeeding and use of breast-milk
substitutes, supplements and related products; and the power to control such
information, which are expressly provided for in Sections 12 and 5(a).
The DOH is also authorized to control the purpose of the information and
to whom such information may be disseminated under Sections 6 through 9 of the
Milk Code54 to ensure that the information that would reach pregnant women,
mothers of infants, and health professionals and workers in the health care system
is restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeed-ing is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH’s power under the Milk Code
to control information regarding breastmilk vis-à-vis breastmilk substitutes
is not absolute as the power to control does not encompass the power to

absolutely prohibit the advertising, marketing, and promotion of breastmilk
substitutes.
J. Puno Concurring Opinion
I write to elucidate another reason why the absolute ban on the
advertising and promotion of breastmilk substitutes found under Sections 4(f) and
11 of A.O. No. 2006-0012 (RIRR) should be struck down. The advertising and
promotion of breastmilk substitutes properly falls within the ambit of the
term commercial speech—that is, speech that proposes an economic
transaction. This 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.
Central Hudson provides a four-part analysis for evaluating the
validity of regulations of commercial speech. To begin with, the commercial
speech must “concern lawful activity and not be misleading” if it is to be protected
under the First Amendment. Next, the asserted governmental interest must be
substantial. If both of these requirements are met, it must next be determined
whether the state regulation directly advances the governmental interest asserted,
and whether it is not more extensive than is necessary to serve that interest.
I proffer the humble view that the absolute ban on advertising prescribed
under Sections 4(f) and 11 of the RIRR is unduly restrictive and is more than
necessary to further the avowed governmental interest of promoting the health of
infants and young children. It ought to be self-evident, for instance, that the
advertisement of such products which are strictly informative cuts too deep on free
speech. The laudable concern of the respondent for the promotion of the health of
infants and young children cannot justify the absolute, overarching ban.
I. Government Speech Doctrine
28. Pleasant Grove City v. Summum, 555
U.S. 460 (2009)
The First Amendment does not place restrictions on government speech, and the
government may use its free speech rights when it receives private assistance for
the purpose of disseminating a message that is controlled by the government.
However, the government may not exercise its free speech rights in a way that
violates the Establishment Clause or other laws or regulations. The political
process is used to hold government actors accountable for their speech.
Facts
Pioneer Park, a public park in Pleasant Grove City contained a monument
to the Ten Commandments among its 11 permanent, privately donated displays.
Summum (religious organization) asked the City to build a monument containing
the Seven Aphorisms of Summum, which were central to its religion, in the same
52
park. It would be comparable in appearance to the Ten Commandments
monument. When the city refused to construct this monument, Summum sued it
for violating the First Amendment because it had permitted a Ten Commandments
monument but not the Seven Aphorisms monument In rejecting the request of
respondent Summum, a religious organization, to erect a monument containing
the Seven Aphorisms of Summum, the City explained that it limited Park
monuments to those either directly related to the City’s history or donated by
groups with longstanding community ties. After the City put that policy and other
criteria into writing, respondent renewed its request, but did not describe the
monument’s historical significance or respondent’s connection to the community.
The City rejected the request, and respondent filed suit, claiming that the City and
petitioner officials had violated the First Amendment’s Free Speech Clause by
accepting the Ten Commandments monument but rejecting respondent’s
proposed monument.
The District Court denied respondent’s preliminary injunction request, but
the US Court of Appeals Circuit reversed it. Noting that it had previously found the
Ten Commandments monument to be private rather than government speech and
that public parks have traditionally been regarded as public forums, the court held
that, because the exclusion of the monument was unlikely to survive strict scrutiny,
the City was required to erect it immediately.
Issue:
Whether placement of a permanent monument in a public park is a form of private
speech and is therefore not subject to scrutiny under the Free Speech Clause.
Held:
NO. The placement of a permanent monument in a public park is a form
of government speech and is therefore not subject to scrutiny under the Free
Speech Clause.
(a) Because that Clause restricts government regulation of private speech but
not government speech, whether petitioners were engaging in their own
expressive conduct or providing a forum for private speech determines which
precedents govern here.
(1) A government entity “is entitled to say what it wishes,” Rosenberger
v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833, and to
select the views that it wants to express. It may exercise this same
freedom when it receives private assistance for the purpose of
delivering a government-controlled message. This does not mean
that there are no restraints on government speech. For example,
government speech must comport with the Establishment Clause.
In addition, public officials’ involvement in advocacy may be limited
by law, regulation, or practice; and a government entity is ultimately
“accountable to the electorate and the political process for its
advocacy.”
(2) In contrast, government entities are strictly limited in their ability to
regulate private speech in “traditional public fora.” Reasonable time,

place, and manner restrictions are allowed, but content-based
restrictions must satisfy strict scrutiny, i.e., they must be narrowly
tailored to serve a compelling government interest. Restrictions
based on viewpoint are also prohibited. Government restrictions on
speech in a “designated public forum” are subject to the same strict
scrutiny as restrictions in a traditional public forum. Cornelius,
supra, at 800. And where government creates a forum that is limited
to use by certain groups or dedicated to the discussion of certain
subjects, it may impose reasonable and viewpoint-neutral
restrictions.
(b) Permanent monuments displayed on public property typically represent
government speech. Governments have long used monuments to speak to the
public. Thus, a government-commissioned and government-financed monument
placed on public land constitutes government speech. So, too, are privately
financed and donated monuments that the government accepts for public display
on government land. While government entities regularly accept privately funded
or donated monuments, their general practice has been one of selective
receptivity. Because city parks play an important role in defining the identity that a
city projects to its residents and the outside world, cities take care in accepting
donated monuments, selecting those that portray what the government
decisionmakers view as appropriate for the place in question, based on esthetics,
history, and local culture. The accepted monuments are meant to convey and have
the effect of conveying a government message and thus constitute government
speech. Pp. 7–10.
(c) Here, the Park’s monuments clearly represent government speech. Although
many were donated in completed form by private entities, the City has “effectively
controlled” their messages by exercising “final approval authority” over their
selection. The City has selected monuments that present the image that the City
wishes to project to Park visitors; it has taken ownership of most of the monuments
in the Park, including the Ten Commandments monument; and it has now
expressly set out selection criteria.
(d) Respondent’s legitimate concern that the government speech doctrine not be
used as a subterfuge for favoring certain viewpoints does not mean that a
government entity should be required to embrace publicly a privately donated
monument’s “message” in order to escape Free Speech Clause restrictions. A city
engages in expressive conduct by accepting and displaying a privately donated
monument, but it does not necessarily endorse the specific meaning that any
particular donor sees in the monument. A government’s message may be altered
by the subsequent addition of other monuments in the same vicinity. It may also
change over time.
(e) “[P]ublic forum principles … are out of place in the context of this case.” The
forum doctrine applies where a government property or program is capable of
accommodating a large number of public speakers without defeating the essential
53
function of the land or program, but public parks can accommodate only a limited
number of permanent monuments. If governments must maintain viewpoint
neutrality in selecting donated monuments, they must either prepare for cluttered
parks or face pressure to remove longstanding and cherished monuments. Were
public parks considered traditional public forums for the purpose of erecting
privately donated monuments, most parks would have little choice but to refuse all
such donations. And if forum analysis would lead almost inexorably to closing of
the forum, forum analysis is out of place.
****The following are the opinions of justices (baka important hehe)
Private speech in a public forum may be subject to very few restrictions, which are
mostly limited to time, place, and manner rules. Any content-based restrictions on
this speech must meet the strict scrutiny standard of review, so they must be
narrowly tailored to a compelling government interest. Permanent monuments on
public property are more properly classified as government speech, though, since
this is their traditional function. Even if a monument is privately financed and
donated, it becomes government speech if it becomes a public display, just as if it
had been commissioned and financed by the government. This is because
governments have a selective process in determining which of these privately
donated monuments will be displayed, and city parks play a critical role in defining
a city's identity.
These monuments were government speech because the City maintained final
approval authority over them and owned most of the monuments in the Park.
Future proposed monuments were subject to selection criteria specifically defined
by the City. While defining a certain type of expression as government speech
should not allow the government to favor certain viewpoints over others, the
government is not required by the First Amendment to publicly endorse any
message conveyed by a privately donated monument. Only a finite number of
monuments may be displayed in any given park, and it is difficult for governments
to preserve viewpoint neutrality by incorporating all possible viewpoints unless
parks are either crowded with monuments, or older monuments are removed.
Broadly applying First Amendment principles in this context would require cities to
accept or refuse all privately donated monuments, which would not be a practice
result. As a result, the traditional forum analysis should not be applied in this
situation because it likely would lead to the government closing the forum.
Concurrence
John Paul Stevens (Author)
Ruth Bader Ginsburg
The majority properly limits the scope of the government speech doctrine,
which has questionable origins and should be applied only to the extent that it does
not conflict with other constitutional doctrines. The case could have reached the
same outcome by treating the acceptance of a monument as an implicit
government endorsement of its message.

Concurrence
David H. Souter (Author)
The government speech doctrine should apply only when a reasonable
and fully informed observer would identify the speech as government speech
rather than private speech that the government permits in a public forum. Not all
public monuments are necessarily government speech. A similar standard should
be used to the Establishment Clause analysis that determines whether the
government is endorsing religion. Clearly, some monuments on public land
convey religious messages that do not conform with the government's views.
Using the observer test in this instance leads to the same result that the majority
reached,
29. John Walker v. Texas Div., Sons of Confederate Veterans Inc.
576 U.S.__(No.14-144, 18 June 2015)
FACTS:
In Texas, vehicle owners are given the choice between specialty license
plates and general-issue ones. The general-issue plates include the license plate
number, the words “Texas” and “The Lone Star State,” a silhouette of Texas, and
a Lone Star graphic. The specialty plates include “Texas” and the license plate
number, but also a specialty design. Individuals pay an annual fee for specialty
plates. Per Texas Transportation Code Law, the Texas Department of Motor
Vehicles Board (Board) has the authority to accept or reject applications for
specialty license plates. Once the Board approves a design for a specialty license
plate, the plate will be available to Texas residents for display on their vehicles.
Designs can contain graphics, a slogan, or both.
In 2009, the Sons of Confederate Veterans (SCV) submitted for approval
a specialty plate design highlighting a Confederate battle flag (SCV’s logo), and
the wording “SONS OF CONFEDERATE VETERANS” and “Sons of Confederate
Veterans 1896.” The Board’s predecessor rejected this design, and SCV renewed
its application in 2010. The Board solicited public comment on this design. The
Board unanimously rejected the plate design and stated that “it had found ‘it
necessary to deny th[e] plate design application, specifically the confederate flag
portion of the design, because public comment ha[d] shown that many members
of the general public find the design offensive, and because such comments are
reasonable.’” Additionally, the Board stated “‘a significant portion of the public
associate the confederate flag with organizations advocating expressions of hate
directed toward people or groups that is demeaning to those people or groups.’”
Following this rejection, SCV and its officers sued both the Board itself
and the Board’s chairman in 2012, claiming that the Board’s rejection of its plate
design violated the Free Speech Clause of the First Amendment of the U.S.
Constitution. SCV sought an injunction requiring the Board to accept its specialty
54
plate design. The District Court found in favor of the Board. The divided Fifth Circuit
later reversed, holding that “Texas’s specialty license plate designs are private
speech and that the Board, in refusing to approve SCV’s design, engaged in
constitutionally forbidden viewpoint discrimination.”
ISSUE:
Whether the Board’s rejection violated the Constitution’s free speech
guarantees, which are contained in the First and Fourteenth Amendments of the
United States Constitution.
RULING:
NO. The Supreme Court reversed, holding that the license plates were
government speech and that Texas was thus free to control their content.
In Pleasant Grove City v. Summun, the Court set forth factors for
determining whether expression is private or government speech by considering
the historical use, the speaker’s identity, and control over the message. By
applying the factors set forth in Summun, the Court found that the conduct
in issue here was government speech. The Court analogized Texas plates to
government IDs, quoting Summun. According to the Court, ID issuers “‘typically do
not permit’ the placement of ‘message[s] with which they do not wish to be
associated.’” Therefore, the Court continued, those observing IDs reasonably and
routinely interpret the IDs as a message being conveyed by the issuer.
Finally, under state law, Texas government maintains direct control
over the messages displayed on license plates. Texas has sole power over the
license plate’s message, as demonstrated by its control over design elements and
the Board’s rejection of at least twelve plate designs. (Board approval is
required, and having resulted in the rejection of at least a dozen plate
designs, that review constitutes “effective control” of the messages
conveyed.)
SCV argued that Texas is providing a private speech forum on its license
plates, rather than engaging in expressive conduct of its own. The Court elected
not to apply “forum analysis” — which would treat the expression as purely private
speech on government property — as the specialty license plate is not a “traditional
public forum” according to the Court. Similarly, the Court found that the specialty
plates were neither a “designated public forum” nor a “limited public forum.”
In determining the type of forum, the Court looked to government practice
and policy, the property’s nature, and the property’s congruity with the expressive
conduct. Because Texas has final say over the specialty plates, Texas did not
produce a public forum by providing specialty plates. The state’s ownership over

the design process for the plates indicated that it did not intend for the plates to be
a public forum. Texas license plates operate as government IDs bearing the name
of the state and, therefore, denote an association between Texas and the
content on the specialty plates. Accordingly, the Court found that the Texas
specialty plates are also not a “nonpublic forum.”
Therefore, the Supreme Court held 5-4 that “Texas’s specialty license
plate designs constitute government speech, and that Texas was entitled to refuse
to issue plates featuring SCV’s proposed design.”
J. Freedom of Assembly
30. BAYAN V. ERMITA
Facts:
Three groups of petitioners.
1. Bayan, et al.: allege that their rights as organizations and individuals were
violated when the rally they participated in on October 6, 2005 was
violently dispersed by policemen implementing Batas Pambansa (B.P.)
No. 880.
2. Jess del Prado, et al.: allege that they were injured, arrested and detained
when a peaceful mass action they participated in a marched to
Malacañang to protest issuances of the Palace which put the country
under an "undeclared" martial rule
3. Kilusang Mayo Uno (KMU), et al.: hey conduct peaceful mass actions and
that their rights as organizations and those of their individual members as
citizens, specifically the right to peaceful assembly
All petitioners assail Batas Pambansa No. 880, some of them in toto and others
only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek
to stop violent dispersals of rallies under the "no permit, no rally" policy and the
CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
 c.
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to
assemble and petition the government for redress of grievances is essential and
vital to the strength and stability of the State. To this end, the State shall ensure
the free exercise of such right without prejudice to the rights of others to life, liberty
and equal protection of the law.
Sec. 3. Definition of terms
"Public assembly" means any rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public place for the purpose
of presenting a lawful cause; […]
"Maximum tolerance" means the highest degree of restraint that the military, police
55
and other peace keeping authorities shall observe during a public assembly or in
the dispersal of the same.
Sec. 4. Permit when required and when not required. – A written permit shall be
required for any person or persons to organize and hold a public assembly in a
public place. However, no permit shall be required if the public assembly shall be
done or made in a freedom park duly established by law or ordinance or in private
property,
Sec. 6. Action to be taken on the application. –
It shall be the duty of the mayor or any official acting in his behalf to issue or grant
a permit unless there is clear and convincing evidence that the public assembly
will create a clear and present danger to public […]
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly.
However, to adequately ensure public safety, a law enforcement contingent […]
may be detailed and stationed in a place at least one hundred (100) meters away
from the area of activity […]
Sec. 11. Dispersal of public assembly with permit. – No public assembly with a
permit shall be dispersed. However, when an assembly becomes violent, the police
may disperse such public assembly
Sec. 12. Dispersal of public assembly without permit. – When the public assembly
is held without a permit where a permit is required, the said public assembly may
be peacefully dispersed.
Petitioners’ contentions:
a. Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human
rights treaties of which the Philippines is a signatory.
b. They argue that B.P. No. 880 requires a permit before one can stage a
public assembly regardless of the presence or absence of a clear and
present danger.
It also curtails the choice of venue and is thus repugnant to the freedom
of expression clause as the time and place of a public assembly form part
of the message for which the expression is sought.
d. Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being tolerated. As
a content-based legislation, it cannot pass the strict scrutiny test.
e. it is a curtailment of the right to peacefully assemble and petition for
redress of grievances because it puts a condition for the valid exercise of
that right.
f. the law delegates powers to the Mayor without providing clear standards.
The Constitution sets no limits on the right to assembly and therefore B.P. No. 880

cannot put the prior requirement of securing a permit. And even assuming that the
legislature can set limits to this right, the limits provided are unreasonable allowing
the Mayor to deny the permit on clear and convincing evidence of a clear and
present danger is too comprehensive. The five-day requirement to apply for a
permit is too long as certain events require instant public assembly, otherwise
interest on the issue would possibly wane.
Respondents argue that B.P. No. 880 is content-neutral as seen from the text of
the law. Section 5 requires the statement of the public assembly’s time, place and
manner of conduct. It entails traffic re-routing to prevent grave public
inconvenience and serious or undue interference in the free flow of commerce and
trade. Nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a
rally’s program content or the statements of the speakers therein,
Issues:
Whether or not BP 880 and the policy of calibrated preemptive response are
constitutional .
Ruling:
BP 880 is constitutional, CPR is unconstitutional.
Their right as citizens to engage in peaceful assembly and exercise the right of
petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880.
The right to peaceably assemble and petition for redress of grievances is, together
with freedom of speech, of expression, and of the press, a right that enjoys primacy
in the realm of constitutional protection. For these rights constitute the very basis
of a functional democratic polity, without which all the other rights would be
meaningless and unprotected.
In Primicias v. Fugoso, the Court likewise sustained the primacy of freedom of
speech and to assembly and petition over comfort and convenience in the use of
streets and parks. It must be remembered that the right is not absolute. “The
exercise of those rights is not absolute for it may be so regulated that it shall not
be injurious to the equal enjoyment of others having equal rights, nor injurious to
the rights of the community or society.”
Reyes v. Bagatsing further expounded on the right and its limits. Free speech, like
free press, may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or punishment. The Constitution is
quite explicit: "No law shall be passed abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances." Freedom of assembly connotes the right
of the people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is not to
be limited, much less denied, except on a showing, as is the case with freedom of
56
expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. This right provides for a safety valve, allowing parties the
opportunity to give vent to their views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort
to non-peaceful means may be the only alternative. It bears repeating, however,
that for the constitutional right to be invoked, riotous conduct, injury to property,
and acts of vandalism must be avoided.
The Supreme Court of the United States held that ‘a statute requiring persons
using the public streets for a parade or procession to procure a special license
therefor from the local authorities is not an unconstitutional abridgment of the rights
of assembly or of freedom of speech and press. Where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of
licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion
to issue or refuse license. The authority of a municipality to impose regulations in
order to assure the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties but rather as
one of the means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most familiar illustration
of this recognition of social need. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the decision
[on the issuance of permits] reached. If he is of the view that there is such an
imminent and grave danger of a substantive evil, the applicants must be heard on
the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes. The
provisions of B.P. No. 880 practically codify the ruling in Reyes. It is very clear,
therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the assemblies. A
fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all
kinds of public assemblies that would use public places.
The reference to "lawful cause" does not make it content-based because
assemblies really have to be for lawful causes, otherwise they would not be
"peaceable" and entitled to protection. Neither are the words "opinion," "protesting"
and "influencing" in the definition of public assembly content based, since they can
refer to any subject. The words "petitioning the government for redress of
grievances" come from the wording of the Constitution, so its use cannot be
avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists
and is independent of the content of the expressions in the rally.
The permit can only be denied on the ground of clear and present danger to public
order, public safety, public convenience, public morals or public health. This is a
recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and Political
Rights: Everyone has the right to freedom of peaceful assembly and association.

In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a democratic
society.
Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent. No prior
restraint, since the content of the speech is not relevant to the regulation. Section
15 of the law provides for an alternative forum through the creation of freedom
parks where no prior permit is needed for peaceful assembly and petition at any
time. Considering that the existence of such freedom parks is an essential part of
the law’s system of regulation of the people’s exercise of their right to peacefully
assemble and petition, the Court is constrained to rule that after thirty (30) days
from the finality of this Decision, no prior permit may be required for the exercise
of such right in any public park or plaza of a city or municipality until that city or
municipality shall have complied with Section 15 of the law. For without such
alternative forum, to deny the permit would in effect be to deny the right. Advance
notices should, however, be given to the authorities to ensure proper coordination
and orderly proceedings.
CPR serves no valid purpose. The Court rules that in view of the maximum
tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the
same thing as maximum tolerance and is illegal if it means something else.
Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the highest degree of
restraint that the military, police and other peace keeping authorities shall observe
during a public assembly or in the dispersal of the same.
Conclusion
b. Court reiterates its basic policy of upholding the fundamental rights of our
people, especially freedom of expression and freedom of assembly.
c. "In cases involving liberty, the scales of justice should weigh heavily
against the government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Indeed, laws and actions
that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected to
heightened scrutiny." [Chief Justice Artemio V. Panganiban]
d. The so-called calibrated preemptive response (CPR) policy has no place
in our legal firmament and must be struck down as a darkness that shrouds
freedom. It merely confuses our people and is used by some police agents
to justify abuses.
e. B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail
57
or unduly restrict freedoms; it merely regulates the use of public places as
to the time, place and manner of assemblies.
f. The Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific
freedom parks as provided under B.P. No. 880. If, after that period, no such
parks are so identified in accordance with Section 15 of the law, all public
parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required
to hold an assembly therein. The only requirement will be written notices
to the police and the mayor’s office to allow proper coordination and orderly
activities.
Other Ruling
1. Contrary to petitioner’s claim, the law is very clear and is nowhere vague
in its provisions. "Public" does not have to be defined. Its ordinary meaning
is well-known.

2. Not every expression of opinion is a public assembly. The law refers to
"rally, demonstration, march, parade, procession or any other form of mass
or concerted action held in a public place." So it does not cover any and all
kinds of gatherings.
3. As to the delegation of powers to the mayor, the law provides a precise
and sufficient standard – the clear and present danger test stated in Sec.
6(a)
4. Furthermore, there is need to address the situation adverted to by
petitioners where mayors do not act on applications for a permit and when
the police demand a permit and the rallyists could not produce one, the
rally is immediately dispersed. In such a situation, as a necessary
consequence and part of maximum tolerance, rallyists who can show the
police an application duly filed on a given date can, after two days from
said date, rally in accordance with their application without the need to
show a permit, the grant of the permit being then presumed under the law,
and it will be the burden of the authorities to show that there has been a
denial of the application, in which case the rally may be peacefully
dispersed following the procedure of maximum tolerance prescribed by the
law.

31. Integrated Bar of the Philippines v. Atienza
613 SCRA 518 (2010)
It is an indispensable condition to such refusal or modification that the clear and
present danger test be the standard for the decision reached. If he is of the view
that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable
or adverse, must be transmitted to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper judicial authority.
Facts:
On June 15, 2006, the IBP, through its then National President Jose
Anselmo Cadiz, filed with the Office of the City Mayor of Manila a letter application
for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m.
to 5:30 p.m. to be participated in by IBP officers and members, law students and
multi-sectoral organizations.
Then-Manila Mayor Atienza issued a permit dated June 16, 2006 allowing
the IBP to stage a rally on given date but indicated therein Plaza Miranda as the
venue, instead of Mendiola Bridge. The permit was received by IBP on June 19,
2006
Aggrieved, IBP filed on June 21, 2006 before the Court of Appeals a
petition for certiorari which was unresolved for 24 hours so IBP filed the same
petition to the Supreme Court which assailed the appellate courts inaction or
refusal to resolve the petition within the period provided under the Public Assembly
Act of 1985.
The rally pushed through on June 22, 2006 at Mendiola Bridge,
after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from the
Manila Police District (MPD) earlier barred petitioners from proceeding thereto. IBP
allege that the participants voluntarily dispersed after the peaceful conduct of the
program.
The MPD thereupon instituted on June 26, 2006 a criminal action,
against Cadiz for violating the Public Assembly Act in staging a rally at a venue not
indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of August
3, 2006.
58
CA ruled, by the first assailed issuance, that the petition became moot
and lacked merit. It also denied petitioners motion for reconsideration by the
second assailed issuance. Hence, the filing of the present petition for review on
certiorari.
Petitioners assert that the partial grant of the application runs contrary to
the Pubic Assembly Act and violates their constitutional right to freedom of
expression and public assembly.
Issue:
Whether or not the mayor could unilaterally specify a place other than the
one indicated by the applicants for the public assembly.
Ruling:
The Supreme Court held that NO, he cannot without an acceptable basis.
The mayor, in modifying the permit outright, gravely abused his discretion,
especially so as he did not immediately inform the applicants who should have
been heard first on the matter of his perceived imminent and grave danger of a
substantive evil that may warrant the changing of the venue. “The opportunity to
be heard precedes the action on the permit, since the applicant may directly go to
court after an unfavorable action on the permit. Atienza failed to indicate how he
had arrived at modifying the terms of the permit against the standard of a clear and
present danger test which, it bears repeating, is an indispensable condition to such
modification.”
Section 6 of the Public Assembly Act reads:
(a) It shall be the duty of the mayor or any official acting in his behalf to
issue or grant a permit unless there is clear and convincing evidence that
the public assembly will create a clear and present danger to public order,
public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application was
filed, failing which, the permit shall be deemed granted. Should for any
reason the mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the applicant
on the premises of the office of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is imminent and grave danger of
a substantive evil warranting the denial or modification of the permit, he
shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the
application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application
or modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial
Court, or the Intermediate Appellate Court, its decisions may be appealed
to the appropriate court within forty-eight (48) hours after receipt of the
same. No appeal bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to the applicant
shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided within
twenty-four (24) hours from date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for disposition or, in his
absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby
allowed.
K. Academic Freedom
32. Miriam College V. CA
It is in the light of this standard that we read Section 7 of the Campus Journalism
Act. Provisions of law should be construed in harmony with those of the
Constitution; acts of the legislature should be construed, wherever possible, in a
manner that would avoid their conflicting with the fundamental law. A statute
should not be given a broad construction if its validity can be saved by a narrower
one. Thus, Section 7 should be read in a manner as not to infringe upon the
school's right to discipline its students. At the same time, however, we should not
construe said provision as to unduly restrict the right of the students to free
speech. Consistent with jurisprudence, we read Section 7 of the Campus
Journalism Act to mean that the school cannot suspend or expel a student
solely on the basis of the articles he or she has written, except when such
articles materially disrupt class work or involve substantial disorder or
invasion of the rights of others.
KAPUNAN, J.:
59
Obscene, vulgar, indecent, gross, sexually explicit, injurious to young
readers, and devoid of all moral values.This was how some members of the Miriam
College community allegedly described the contents of the September-October
1994 issue (Vol. 41, No. 14) of Miriam Colleges school paper (Chi-Rho), and
magazine (Ang Magasing Pampanitikan ng Chi-Rho). The articles in the Chi-
Rho included:
xxx a story, clearly fiction, entitled Kaskas written by one Gerald Garry Renacido
xxx.
Kaskas, written in Tagalog, treats of the experience of a group of young, male,
combo players who, one evening, after their performance went to see a bold show
in a place called Flirtation. This was the way the author described the groups
exposure during that stage show:
Sige, sa Flirtation tayo. Happy hour na halos. he! he! he! sambit ng kanilang
bokalistang kanina pa di maitago ang pagkahayok sa karneng babae na kanyang
pinananabikan nuong makalawa pa, susog naman ang tropa.
"x x x Pumasok ang unang mananayaw. Si Red Raven ayon sa emcee. Nakasuot
lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at sa bandang
utong. Nagsimula siya sa kanyang pag-giling nang tumugtog na ang unang tono
ng Goodbye ng Air Supply. Dahan-dahan ang kanyang mga malalantik at mapang-
akit na galaw sa una. Mistulang sawa na nililingkis ang hangin, paru-parong
padapo-dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng nektar,
ngunit para ipaglantaran ang sariling bulaklak at ang angkin nitong malansang
nektar.
Kaskas mo babe, sige kaskas.
Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan, dahil
sa harap niyay nagtagal. Nag-akmang mag-aalis ng pangitaas na kapirasong
tela. Hindi nakahinga si Mike, nanigas sa kanyang kinauupuan, nanigas pati ang
nasa gitna ng kanyang hita. Ang mga mata niyay namagnet sa kayamanang
ngayoy halos isang pulgada lamang mula sa kanyang naglalaway na
bunganga. Naputol-putol ang kanyang hininga nang kandungan ni Red Raven ang
kanyang kanang hita. Lalo naghingalo siya nang kabayuhin ito ng dahan-dahan
Pabilis ng pabilis.
The author further described Mikes responses to the dancer as follows
(quoted in part):
x x x Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo ang
ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan ang
kanyang dibdib sa mukha nito.

Kaskas mo pa, kaskas mo pa!
Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang halikan
siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot niyang
pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay nanalo o natalo sa
nangyaring sagupaan ng libog. Ang alam lang niya ay nanlata na siya.
After the show the group went home in a car with the bokalista driving. A pedestrian
happened to cross the street and the driver deliberately hit him with these words:
Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad ng
sabog nilang drayber/bokalista.
The story ends (with their car about to hit a truck) in these words: Pare
trak!!! Put.!!!!
Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the cover
title of Libog at iba pang tula.
In his foreword which Jerome Gomez entitled Foreplay, Jerome wrote: Alam ko,
nakakagulat ang aming pamagat. Jerome then proceeded to write about previous
reactions of readers to women-writers writing about matters erotic and to gay
literature. He justified the Magazines erotic theme on the ground that many of the
poems passed on to the editors were about sekswalidad at ibat ibang karanasan
nito. Nakakagulat ang tapang ng mga manunulat tungkol sa maselang usaping ito
xxx at sa isang institusyon pang katulad ng Miriam!
Mr. Gomez quoted from a poem entitled Linggo written by himself:
may mga palangganang nakatiwangwang mga putang biyak na sa gitna, di na
puwedeng paglabhan, di na maaaring pagbabaran
Gomez stated that the poems in the magazine are not garapal and sa mga tulang
ito namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng pamagat na
Libog at iba pang Tula. He finished Foreplay with these words: Dahil para saan pa
ang libog kung hindi ilalabas?
The cover title in question appears to have been taken from a poem written by
Relly Carpio of the same title. The poem dealt on a woman and a man who met
each other, gazed at each other, went up close and Naghalikan, Shockproof. The
poem contained a background drawing of a woman with her two mamaries and
nipples exposed and with a man behind embracing her with the woman in a pose
of passion-filled mien.
60
Another poem entitled Virgin Writes Erotic was about a man having fantasies in his
sleep. The last verse said: At zenith I pull it out and find myself alone in this
fantasy. Opposite the page where this poem appeared was a drawing of a man
asleep and dreaming of a naked woman (apparently of his dreams) lying in bed on
her buttocks with her head up (as in a hospital bed with one end rolled up). The
womans right nipple can be seen clearly. Her thighs were stretched up with her
knees akimbo on the bed.
In the next page (page 29) one finds a poem entitled Naisip ko Lang by Belle
Campanario. It was about a young student who has a love-selection
problem: Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend kong
bading. The word praning as the court understands it, refers to a paranoid person;
while the word bading refers to a sward or bakla or badidang. This poem also had
an illustration behind it: of a young girl with large eyes and sloping hair cascading
down her curves and holding a peeled banana whose top the illustrator shaded up
with downward-slanting strokes. In the poem, the girl wanted to eat banana topped
by peanut butter. In line with Jeromes Foreplay and by the way it was drawn that
banana with peanut butter top was meant more likely than not, to evoke a spiritedly
mundane, mental reaction from a young audience.
Another poem entitled Malas ang Tatlo by an unknown author went like this:
Na picture mo na ba nong magkatabi tayong dalawa sa pantatluhang sofa ikaw,
the legitimate asawa at ako, biro mo, ang kerida? tapos, tumabi siya, shit! kumpleto
na:ikaw, ako at siya kulang na lang, kamera.
A poem Sa Gilid ng Itim by Gerald Renacido in the Chi-Rho broadsheet spoke of
a fox (lobo) yearning for karneng sariwa, karneng bata, karneng may kalambutan.
isang bahid ng dugong dalaga, maamot malasa, ipahid sa mga labing sakim sa
romansa and ended with hinog na para himukin bungang bibiyakin.Following the
publication of the paper and the magazine, the members of the editorial board and
Relly Carpio, author of Libog, all students of Miriam College, received a letter
signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee. The
Letter dated 4 November 1994 stated:
This is to inform you that the letters of complaint filed against you by members of
the Miriam Community and a concerned Ateneo grade five student have been
forwarded to the Discipline Committee for inquiry and investigation. Please find
enclosed complaints.
As expressed in their complaints you have violated regulations in the student
handbook specifically Section 2 letters B and R, pages 30 and 32, Section 4 (Major
offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2 (minor offenses)
letter a, page 37.

You are required to submit a written statement in answer to the charge/s on or
before the initial date of hearing to be held on November 15, 1994, Tuesday, 1:00
in the afternoon at the DSA Conference Room.
None of the students submitted their respective answers. They instead
requested Dr. Sevilla to transfer the case to the Regional Office of the Department
of Education, Culture and Sports (DECS) which under Rule XII of DECS Order No.
94, Series of 1992, supposedly had jurisdiction over the case.
In a Letter dated 21 November 1994, Dr. Sevilla again required the students
to file their written answers.
In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a
letter to the Discipline Committee reiterating his clients position that said
Committee had no jurisdiction over them. According to Atty. Valmonte, the
Committee was trying to impose discipline on [his clients] on account of their
having written articles and poems in their capacity as campus journalists. Hence,
he argued that what applies is Republic Act No. 7079 [The Campus Journalism
Act] and its implementing rules and regulations. He also questioned the partiality
of the members of said Committee who allegedly had already articulated their
position against his clients.
The Discipline Committee proceeded with its investigation ex
parte. Thereafter, the Discipline Board, after a review of the Discipline Committees
report, imposed disciplinary sanctions upon the students, thus:
1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho
and a 4th year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on February 2,
1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year
student and could graduate as summa
cum laude;
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including
diploma. She is an Octoberian;
7. Joel Tan suspension for two (2) weeks to expire on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials. He is
a 2nd year student. He wrote the fiction
story Kaskas;
9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd
year and wrote the poem Libog;
61
10. Jerome Gomez Dismissed and given transfer credentials. He is in
3rd year. He wrote the foreword
Foreplay to the questioned Anthology of
Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd
year student and art editor of Chi-Rho.
The above students thus filed a petition for prohibition and certiorari with
preliminary injunction/restraining order before the Regional Trial Court of Quezon
City questioning the jurisdiction of the Discipline Board of Miriam College over
them.
On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge
Jaime N. Salazar, Jr., issued an order denying the plaintiffs prayer for a Temporary
Restraining Order. It held:
There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992 that
excludes school Administrators from exercising jurisdiction over cases of the
nature involved in the instant petition. R.A. 7079 also does not state anything on
the matter of jurisdiction. The DECS undoubtedly cannot determine the extent of
the nature of jurisdiction of schools over disciplinary cases.
The students thereafter filed a Supplemental Petition and Motion for
Reconsideration. The College followed with its Answer.
ACCORDINGLY, so as not to render the issues raised moot and academic, let a
writ of preliminary injunction issue enjoining the defendants, including the officers
and members of the Disciplinary Committee, the Disciplinary Board, or any similar
body and their agents, and the officers and members of the Security Department,
Division, or Security Agency securing the premises and campus of Miriam College
Foundation, Inc. from:
1. Enforcing and/or implementing the expulsion or dismissal resolutions
or orders complained of against herein plaintiffs (a) Jasper Briones;
(b) Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and
(e) Jose Mari Ramos, but otherwise allowing the defendants to
impose lesser sanctions on aforementioned plaintiffs; and
2. Disallowing, refusing, barring or in any way preventing the herein
plaintiffs (all eleven of them) from taking tests or exams and entering
the Miriam campus for such purpose as extended to all students of
Miriam College Foundation, Inc.; neither should their respective
course or subject teachers or professors withhold their grades,
including final grades, if and when they meet the requirements
similarly prescribed for all other students, this current 2nd Semester
of 1994-95.

The sanctions imposed on the other plaintiffs, namely, Deborah Ligon, Imelda
Hilario, Elizabeth Valdezco, Camille Portugal and Daphne Cowper, shall remain in
force and shall not be covered by this Injunction: Provided, that Camille Portugal
now a graduate, shall have the right to receive her diploma, but defendants are not
hereby prevented from refusing her the privilege of walking on the graduation stage
so as to prevent any likely public tumults.
The plaintiffs are required to post an injunction bond in the sum of Four Thousand
Pesos (P4,000.00) each.
SO ORDERED.
Both parties moved for a reconsideration of the above order. In an Order
dated 22 February 1995, the RTC dismissed the petition, thus:
The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper,
sought relief in this Court through a petition for certiorari and prohibition of
preliminary injunction/restraining order questioning the Orders of the RTC dated
10 and 24 February 1995.
On 15 March 1995, the Court resolved to refer the case to the Court of
Appeals (CA) for disposition. On 19 May 1995, the CA issued a resolution stating:
The respondents are hereby required to file comment on the instant petition and to
show cause why no writ of preliminary injunction should be issued, within ten (10)
days from notice hereof, and the petitioners may file reply thereto within five (5)
days from receipt of formers comment.
SO ORDERED.
In its Decision dated 26 September 1996, respondent court granted the
students petition. The CA declared the RTC Order dated 22 February 1995, as
well as the students suspension and dismissal, void.
Hence, this petition by Miriam College.
ISSUE:
Whether or not Section 7 of the Campus Journalism Act precludes the school’s
right to discipline its students.
62
RULING:
1.) NO. Section 7 should be read in a manner as not to infringe upon the
school's right to discipline its students. At the same time, however, said
provision should not be construed as to unduly restrict the right of the
students to free speech. Consistent with jurisprudence, Section 7 of the
Campus Journalism Act is read to mean that the school cannot suspend or
expel a student solely on the basis of the articles he or she has written,
except when such article materially disrupt class work or involve substantial
disorder or invasion of the rights of others. Further, the power of the school
to investigate is an adjunct of its power to suspend or expel. It is a necessary
corollary to the enforcement of rules and regulations and the maintenance
of a safe and orderly educational environment conducive to learning. That
power, like the power to suspend or expel, is an inherent part of the academic
freedom of institutions of higher learning guaranteed by the Constitution. the
Court therefore rule that Miriam College has the authority to hear and decide
the cases filed against the students.
To uphold and protect the freedom of the press even at the campus level and
to promote the development and growth of campus journalism as a means of
strengthening ethical values, encouraging critical and creative thinking, and
developing moral character and personal discipline of the Filipino youth, Congress
enacted in 1991 Republic Act No. 7079.
Entitled AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF
CAMPUS JOURNALISM AND FOR OTHER PURPOSES, the law contains
provisions for the selection of the editorial board and publication adviser, the
funding of the school publication, and the grant of exemption to donations used
actually, directly and exclusively for the promotion of campus journalism from
donors or gift tax.
Noteworthy are provisions clearly intended to provide autonomy to the
editorial board and its members. Thus, the second paragraph of Section 4 states
that (o)nce the publication is established, its editorial board shall freely determine
its editorial policies and manage the publications funds.
Section 7, in particular, provides:
A member of the publication staff must maintain his or her status as student in
order to retain membership in the publication staff. A student shall not be expelled
or suspended solely on the basis of articles he or she has written, or on the basis
of the performance of his or her duties in the student publication.
Section 9 of the law mandates the DECS to promulgate the rules and
regulations necessary for the effective implementation of this Act. Pursuant to said
authority, then DECS Secretary Armand Fabella, issued DECS Order No. 94,
Series of 1992, providing under Rule XII that:

SECTION 1. The Department of Education, Culture and Sports (DECS) shall help
ensure and facilitate the proper carrying out of the Implementing Rules and
Regulations of Republic Act No. 7079. It shall also act on cases on appeal brought
before it.
The DECS regional office shall have the original jurisdiction over cases as a result
of the decisions, actions and policies of the editorial board of a school within its
area of administrative responsibility. It shall conduct investigations and hearings
on the these cases within fifteen (15) days after the completion of the resolution of
each case. (Underscoring supplied.)
The latter two provisions of law appear to be decisive of the present case.
It may be recalled that after the Miriam Disciplinary Board imposed
disciplinary sanctions upon the students, the latter filed a petition for certiorari and
prohibition in the Regional Trial Court raising, as grounds therefor, that:
I Section 5 (2), Article XIV of the Constitution guarantees all institutions
DEFENDANTS DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF
DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.
II
DEFENDANT SCHOOLS DISCIPLINARY COMMITTEE AND THE
DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN
IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING
COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE LATTER
OF THEIR RIGHT TO DUE PROCESS.
Anent the first ground, the students theorized that under Rule XII of the Rules
and Regulations for the Implementation of R.A. No. 7079, the DECS Regional
Office, and not the school, had jurisdiction over them. The second ground, on the
other hand, alleged lack of impartiality of the Miriam Disciplinary Board, which
would thereby deprive them of due process. This contention, if true, would
constitute grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the trial court. These were the same grounds invoked by the students
in their refusal to answer the charges against them. The issues were thus limited
to the question of jurisdiction a question purely legal in nature and well within the
competence and the jurisdiction of the trial court, not the DECS Regional
Office. This is an exception to the doctrine of primary jurisdiction. As the Court held
in Phil. Global Communications, Inc. vs. Relova.
However, when Miriam College in its motion for reconsideration contended
that the DECS Regional Office, not the RTC, had jurisdiction, the trial court,
refusing to "be more popish than the Pope," dismissed the case. Indeed, the trial
63
court could hardly contain its glee over the fact that "it will have one more case out
of its docket." We remind the trial court that a court having jurisdiction of a case
has not only the right and the power or authority, but also the duty, to exercise
that jurisdiction and to render a decision in a case properly submitted to it.
Accordingly, the trial court should not have dismissed the petition without settling
the issues presented before it.
Before we address the question of which between the DECS Regional Office
and Miriam College has jurisdiction over the complaints against the students, we
first delve into the power of either to impose disciplinary sanctions upon the
students. Indeed, the resolution of the issue of jurisdiction would be reduced to an
academic exercise if neither the DECS Regional Office nor Miriam College had the
power to impose sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of the Campus
Journalism Act prohibits the expulsion or suspension of a student solely on the
basis of articles he or she has written.
of higher learning academic freedom. This institutional academic freedom
includes the right of the school or college to decide for itself, its aims and
objectives, and how best to attain them free from outside coercion or
interference save possibly when the overriding public welfare calls for some
restraint. The essential freedoms subsumed in the term "academic freedom"
encompasses the freedom to determine for itself on academic grounds:
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study.
The right of the school to discipline its students is at once apparent in
the third freedom, i.e., "how it shall be taught." A school certainly cannot
function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational institution
requires rules and regulations necessary for the maintenance of an orderly
educational program and the creation of an educational environment conducive to
learning. Such rules and regulations are equally necessary for the protection of the
students, faculty, and property.
Moreover, the school has an interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of learning. By instilling
discipline, the school teaches discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to teach."

Incidentally, the school not only has the right but the duty to develop
discipline in its students. The Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and nationalism, foster
love of humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge, and promote vocational
efficiency.
In Angeles vs. Sison, we also said that discipline was a means for the school to
carry out its responsibility to help its students "grow and develop into mature,
responsible, effective and worthy citizens of the community.”
Finally, nowhere in the above formulation is the right to discipline more
evident than in "who may be admitted to study." If a school has the freedom to
determine whom to admit, logic dictates that it also has the right to determine whom
to exclude or expel, as well as upon whom to impose lesser sanctions such as
suspension and the withholding of graduation privileges.
Thus, in Ateneo de Manila vs. Capulong, the Court upheld the expulsion of
students found guilty of hazing by petitioner therein, holding that:
No one can be so myopic as to doubt that the immediate reinstatement of
respondent students who have been investigated and found guilty by the
Disciplinary Board to have violated petitioner university's disciplinary rules and
standards will certainly undermine the authority of the administration of the
school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic freedom
which has been enshrined in the 1935, 1973 and the present 1987 Constitution.
Tracing the development of academic freedom, the Court continued:
Since Garcia vs. Loyola School of Theology, we have consistently upheld the
salutary proposition that admission to an institution of higher learning is
discretionary upon a school, the same being a privilege on the part of the student
rather than a right. While under the Education Act of 1982, students have a right
"to freely choose their field of study, subject to existing curricula and to continue
their course therein up to graduation," such right is subject, as all rights are, to the
established academic and disciplinary standards laid down by the academic
institution.
"For private schools have the right to establish reasonable rules and regulations
for the admission, discipline and promotion of students. This right extends as well
64
to parents as parents under a social and moral (if not legal) obligation, individually
and collectively, to assist and cooperate with the schools."
Such rules are "incident to the very object of incorporation and indispensable to
the successful management of the college. The rules may include those governing
student discipline." Going a step further, the establishment of the rules governing
university-student relations, particularly those pertaining to student discipline, may
be regarded as vital, not merely to the smooth and efficient operation of the
institution, but to its very survival.
Within memory of the current generation is the eruption of militancy in the
academic groves as collectively, the students demanded and plucked for
themselves from the panoply of academic freedom their own rights encapsulized
under the rubric of "right to education" forgetting that, In Hohfeldian terms, they
have the concomitant duty, and that is, their duty to learn under the rules laid down
by the school.
xxx. It must be borne in mind that universities are established, not merely to
develop the intellect and skills of the studentry, but to inculcate lofty values, ideals
and attitudes; may, the development, or flowering if you will, of the total man.
In essence, education must ultimately be religious -- not in the sense that the
founders or charter members of the institution are sectarian or profess a religious
ideology. Rather, a religious education, as the renowned philosopher Alfred North
Whitehead said, is 'an education which inculcates duty and reverence.' It appears
that the particular brand of religious education offered by the Ateneo de Manila
University has been lost on the respondent students.
Certainly, they do not deserve to claim such a venerable institution as the Ateneo
de Manila University as their own a minute longer, for they may foreseeably cast a
malevolent influence on the students currently enrolled, as well as those who come
after them.
Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court of
Appeals that: "The maintenance of a morally conducive and orderly educational
environment will be seriously imperilled, if, under the circumstances of this case,
Grace Christian is forced to admit petitioner's children and to reintegrate them to
the student body." Thus, the decision of petitioner university to expel them is but
congruent with the gravity of their misdeeds
Section 4 (1), Article XIV of the Constitution recognizes the State's power to
regulate educational institution:

The State recognizes the complementary roles of public and private institutions in
the educational system and shall exercise reasonable supervision and regulation
of all educational institutions.
As may be gleaned from the above provision, such power to regulate is
subject to the requirement of reasonableness. Moreover, the Constitution allows
merely the regulation and supervision of educational institutions, not
the deprivation of their rights.
In several cases, this Court has upheld the right of the students to free speech
in school premises. In the landmark case of Malabanan vs. Ramento, students of
the Gregorio Araneta University Foundation, believing that the merger of the
Institute of Animal Science with the Institute of Agriculture would result in the
increase in their tuition, held a demonstration to protest the proposed merger. The
rally however was held at a place other than that specified in the school permit and
continued longer than the time allowed. The protest, moreover, disturbed the
classes and caused the stoppage of the work of non-academic personnel. For the
illegal assembly, the university suspended the students for one year. In affirming
the students' rights to peaceable assembly and free speech, the Court through Mr.
Chief Justice Enrique Fernando, echoed the ruling of the US Supreme Court
in Tinker v. Des Moines School District.
Petitioners invoke their rights to peaceable assembly and free speech. They are
entitled to do so. They enjoy like the rest of the citizens the freedom to express
their views and communicate their thoughts to those disposed to listen in
gatherings such as was held in this case. They do not, to borrow from the opinion
of Justice Fortas in Tinker v. Des Moines Community School District, 'shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.'
While, therefore, the authority of educational institutions over the conduct of
students must be recognized, it cannot go so far as to be violative of constitutional
safeguards. On a more specific level there is persuasive force to this Fortas
opinion. "The principal use to which the schools are dedicated is to accommodate
students during prescribed hours for the purpose of certain types of
activities. Among those activities is personal intercommunication among the
students. This is not only inevitable part of the educational process. A student's
rights, therefore, do not embrace merely the classroom hours. When he is in the
cafeteria, or on the playing field, or on the campus during the authorized hours, he
may express his opinions, even on controversial subjects like the conflict in
Vietnam, if he does so without 'materially and substantially interfer[ing] with the
requirements of appropriate discipline in the operation of the school' and without
colliding with the rights of others. * * * But conduct by the student, in class or out
of it, which for any reason - whether it stems from time, place, or type of behavior
-- materially disrupts classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the constitutional guarantee of
freedom of speech.
65
The right of the students to free speech in school premises, however, is not
absolute. The right to free speech must always be applied in light of the special
characteristics of the school environment. Thus, while we upheld the right of the
students to free expression in these cases, we did not rule out disciplinary action
by the school for "conduct by the student, in class or out of it, which for any reason
- whether it stems from time, place, or type of behavior - which materially disrupts
classwork or involves substantial disorder or invasion of the rights of others." Thus,
in Malabanan, we held:
6. Objection is made by private respondents to the tenor of the speeches by the
student leaders. That there would be a vigorous presentation of view opposed to
the proposed merger of the Institute of Animal Science with the Institute of
Agriculture was to be expected. There was no concealment of the fact that they
were against such a move as it confronted them with a serious problem ('isang
malaking suliranin.") They believed that such a merger would result in the increase
in tuition fees, an additional headache for their parents ('isa na naman sakit sa ulo
ng ating mga magulang.") If in the course of such demonstration, with an
enthusiastic audience goading them on, utterances extremely critical at times,
even vitriolic, were let loose, that is quite understandable. Student leaders are
hardly the timid, diffident types. They are likely to be assertive and dogmatic. They
would be ineffective if during a rally they speak in the guarded and judicious
language of the academe. At any rate, even a sympathetic audience is not
disposed to accord full credence to their fiery exhortations. They take into account
the excitement of the occasion, the propensity of speakers to exaggerate, the
exuberance of youth. They may give the speakers the benefit of their applause,
but with the activity taking place in the school premises and during the daytime, no
clear and present danger of public disorder is discernible. This is without prejudice
to the taking of disciplinary action for conduct, which, to borrow from Tinker,
"materially disrupts classwork or involves substantial disorder or invasion of the
rights of others."
It is in the light of this standard that we read Section 7 of the Campus Journalism
Act. Provisions of law should be construed in harmony with those of the
Constitution; acts of the legislature should be construed, wherever possible, in a
manner that would avoid their conflicting with the fundamental law. A statute
should not be given a broad construction if its validity can be saved by a narrower
one. Thus, Section 7 should be read in a manner as not to infringe upon the
school's right to discipline its students. At the same time, however, we should not
construe said provision as to unduly restrict the right of the students to free
speech. Consistent with jurisprudence, we read Section 7 of the Campus
Journalism Act to mean that the school cannot suspend or expel a student
solely on the basis of the articles he or she has written, except when such
articles materially disrupt class work or involve substantial disorder or
invasion of the rights of others.
From the foregoing, the answer to the question of who has jurisdiction over
the cases filed against respondent students becomes self-evident. The power of
 66

the school to investigate is an adjunct of its power to suspend or expel. It is a

necessary corollary to the enforcement of rules and regulations and the
maintenance of a safe and orderly educational environment conducive to learning.
That power, like the power to suspend or expel, is an inherent part of the academic
freedom of institutions of higher learning guaranteed by the Constitution. We
therefore rule that Miriam College has the authority to hear and decide the cases
filed against respondent students.
WHEREFORE, the decision of the Court of Appeals
is REVERSED and SET ASIDE. Petitioner Miriam College is ordered
to READMIT private respondent Joel Tan whose suspension has long lapsed.