Right of Association

Right of those employed in the public and

private sectors to form unions, associations,
or societies for purposes not contrary to law
shall not be abridged. (Sec. 8, Art. III, 1987
Const.)
 Right of Association
The Constitution allows employees in the
public sector to form unions. However, they
cannot go on strike. (MPSTA v. Laguio, Jr.
GR 95445 & 95590, August 6, 1991, 200
SCRA 323)

Art. IX-B, Sec. 2(5) which affirms that “the

right to self-organization shall not be denied
to government employees.
 Right of Association
*Cannot be impaired without due process of
law.

*Exception: Valid Exercise of Police Power.

*Includes the right not to join an association.

 Freedom of Expression

Part of Art. III Sec. 4

No law shall be passed abridging the freedom
of speech, of expression, or of the press, or
the right of the people peaceably to
assemble and petition the government for
redress or grievances.
Freedom of Expression, Scope:
All forms of communication are entitled to broad
protection of the freedom of expression clause.

1) Free Speech
2) Free Press
2) Freedom of Assembly
3) Freedom of Petition
4) Freedom of Religion
5) Right of association

* Speech, expression and press include every form of

expression, whether oral, written, tape or disc recorded.
It also includes movies and symbolic speech such as
the wearing of arm bands as a symbol of protest, as
well as peaceful picketing.
*Freedom of Expression include freedom not to speak or not to express
one's self.

*Includes the right to an audience, in the sense that the state cannot
prohibit the people from hearing what a person has to say, whatever may
be the quality of his thoughts.

*Constitutional Right to Freedom of Expression is available only against

Government intrusion (such as Public Officials). However, an action for
damages pursuant to Article 32 of the Civil Code can be raised by an
aggrieved party against another private individual.
Test of Valid Exercise of Freedom of Expression

Clear and Present Danger Test

- Danger created must not only be clear and present but also
traceable to the ideas expressed. Evil consequence of the speech
must be extremely serious and the degree of imminence extremely
high before it can be punished.

Balancing of Interest Test

-When two legitimate values not involving national security
crimes compete. Public interest sought to be protected and the
social value of the freedom are judged based on many factors such
as: social value and importance of the speech, how many persons
are affected by the restriction, nature and gravity of evil to be
prevented, appropriateness and necessity of the restriction and least
restrictive means.

Dangerous Tendency Test

- if the words uttered create a dangerous tendency of an evil which
*In the Philippine jurisdiction, we adhere to the clear
and present danger test.

(ABS-CBN Broadcasting Corp. vs. Comelec, G.R. No.

133486, Jan. 28, 2000).
What are the two (2) basic prohibitions of the freedom
of speech and of the press clause? Explain. (2%)

1) Freedom from Censorship or Prior Restraint.

2) Freedom from Subsequent Punishment.

Prior Restraint refers to official Government restrictions
on the press or other forms of expression in advance of
actual publication or dissemination. This includes
freedom from government censorship of publications,
whatever the form of censorship and regardless of
whether it is by the executive, legislative, or judiciary.

Examples:
a) System of Licensing administered by an executive
officer (Primicias v. Fugoso, 1948)
b) Judicial prior restraint – injunction against publication
(Near v. Minnesota 283 US 697)
c) License taxes measured by gross receipts for the
privilege of engaging in the business of advertising in
any newspaper (Grosjean v. American Press Co., 297
US 233)
Tests and Limitations on Prior Restraint:

Freedom of expression is not absolute since it is always

subject to the Police Power of the State. Based on the
need to protect society from injurious exercise of said
freedom and the need to promote or protect public
welfare, safety, morals and national security.

Generally, restraints on speech are invalid, but there

are allowable restrictions if the restraint meets the
burden of proof on whether it is a content neutral or
content based regulation.
Examples of when Prior Restraint is permitted:

- Pornography
- False or Misleading commercial statement
- Advocacy or imminent lawless action
- Danger to national security
- Press statements made by persons for and on behalf
of the government, uttered while in the exercise of their
official functions
- Movies, television, and radio broadcast censorship in
view of its access to numerous people, including the
youth who must be insulated from the prejudicial effects
of unprotected speech.
Content Based Regulation:

Restricts the message or idea of the expression.

Usually based on the fear of how people will react to a
particular speech.

Requires Strict Scrutiny Test

- Heavy presumption of constitutional INVALIDITY.
- Test for overbreadth and vagueness.
Content-Based Regulation:

Restricts the message or idea of the expression.

Usually based on the fear of how people will react to a
particular speech.

Requires Strict Scrutiny Test

- Heavy presumption of constitutional INVALIDITY.
- Test for overbreadth and vagueness.

*Can be a valid restriction if it overcomes these tests.

Content-Neutral Regulation:

Restricts only the time, place or manner of the

expression in public palces without any restraint on the
content of the expression.

Requires Intermediate Test

- Within consitutional power
- Substantial government interest
- Such interest is unrelated to suppression of free
expression
- Least restrictive means
Freedom from subsequent Punishment

Limitation on the power of the State to impose a

punishment after publication or dissemination.

Criticism on the government, no matter how severe, is

within the range of liberty of speech unless the intention
and effect be seditious. (PP v. Perez, 45 Phil. 599 1923)
Doctrines on Free-Speech Cases:

1. Facial Challenge – allowed to be made on a vague statute

and to one which is overbroad due to “chilling effect” upon
protected speech.

2. Overbreadth Doctrine – Governmental purpose may not be

achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms.

*General Rule: Statue may only be questioned by any party if,

as applied to him, the former is unconstitutional.
*Exception: Overbreadth and vagueness doctrines are not
appropriate for testing the validity of penal statutes.
Doctrines on Free-Speech Cases:

1. Facial Challenge – allowed to be made on a vague statute

and to one which is overbroad due to “chilling effect” upon
protected speech.

*Since the Constitution

2. Overbreadth has– expanded
Doctrine Governmentalthe scope
purposeof judicial
may not be
achieved
power by means
of the Supreme which sweep
Court, unnecessarily
the application broadly
of facial and
challenge
covers
therebyall rightsthe
invade protected
area of by the Bill of
protected Rights. (Imbong v.
freedoms.
Ochoa 2014)
*General Rule: Statue may only be questioned by any party if,
as applied to him, the former is unconstitutional.
*Exception: Overbreadth and vagueness doctrines are not
appropriate for testing the validity of penal statutes.
What is the doctrine of "overbreath"? In what context
can it be correctly applied? Not correctly applied?
Explain (5%)

A statute is overbroad when a governmental purpose to control

or prevent activities constitutionally subject to state regulations
is sought to be achieved by means which sweep unnecessarily
broadly and invade the area of protected freedom.

It applies both to free speech cases and penal statutes.

However, a facial challenge on the ground of overbreadth can
only be made in free speech cases because of its chilling effect
upon protected speech.

A facial challenge on the ground of overbreadth is not

applicable to penal statutes, because in general they have an
in terrorem effect.
What is the doctrine of "void for vagueness"? In what
context can it be correctly applied? Not correctly
applied? Explain (5%)

A statute is vague when it lacks comprehensible

standards that men of common intelligence that
guess at its meaning and differ as to its application.
It applies to both free speech cases and penal statutes.

However, a facial challenge on the ground of vagueness

can be made only in free speech cases. It does not
apply to penal statutes.
In a protest rally' along Padre Faura Street, Manila,
Pedrong Pula took up the stage and began shouting
"you corrupt officials, you better resign now, or else we
will cause trouble here!" Simultaneously, he brought out
a rock the size of a· fist and pretended to hurl it at the
flagpole area of a government building. He did not
actually throw the rock.

Police officers who were monitoring the situation

immediately approached Pedrong Pula and arrested
him. He was prosecuted for seditious speech and was
convicted. On appeal, Pedrong Pula argued he was
merely exercising his freedom of speech and freedom
of expression guaranteed by the Bill of Rights. Decide
with reasons. (5%)
SUGGESTED ANSWER:

Pedrong Pula should be acquitted. His freedom of

speech should not be limited in the absence of a clear
and present danger of a substantive evil that the
state had the right to prevent. He pretended to hurl a
rock but did not actually throw it. He did not commit any
act of lawless violence. (David vs. Macapagal-Arroyo,
489 SCRA 160).
What is "commercial speech"? Is it entitled to
constitutional protection? What must be shown in order
for government to curtail "commercial speech"? Explain.
(3%)

Commercial speech is communication which involves

only the commercial interest of the speaker and the
audience, such as advertisements.

Commercial speech is entitled to constitutional

protection.

Commercial speech may be required to be submitted to

a government agency for review to protect public
interests by preventing false or deceptive claims.
The Destilleria Felipe Segundo is famous for its 15-year
old rum, which it has produced and marketed
successfully for the past 70 years. Its latest commercial
advertisement uses the line: "Nakatikim ka na ba ng
kinse anyos?" Very soon, activist groups promoting
women's and children's rights were up in arms against
the advertisement.

(a) All advertising companies in the Philippines have

formed an association, the Philippine Advertising
Council, and have agreed to abide by all the ethical
guidelines and decisions by the Council. In response to
the protests, the Council orders the pull-out of the
"kinse anyos" advertising campaign. Can Destilleria
Felipe Segundo claim that its constitutional rights are
thus infringed?
Destilleria Felipe Segundo cannot claim that its
constitutional rights were infringed. The guarantee of
freedom of speech is a limitation on state action and not
on the action of private parties.

In this case, a private association formed by advertising

companies for self regulation was the one who ordered
that the advertisement be pulled out, because
Destilleria did not comply with the association’s ethical
guidelines.

The mass media are private enterprises, and their

refusal to accept any advertisement does not violate
freedom of speech.
(b) One of the militant groups, the Amazing Amazonas,
call on all government-owned and controlled
corporations (GOCC) to boycott any newspaper, radio
or TV station that carries the "kinse anyos"
advertisements. They call on all government nominees
in sequestered corporations to block any advertising
funds allocated for any such newspaper, radio or TV
station. Can the GOCCs and sequestered corporations
validly comply?
The government owned and controlled corporations and
the government nominees in sequestered corporations
cannot block any advertising funds allocated for any
newspaper, radio or television station which carries the
advertisements of Destilleria. Since they are
government entities and officers, they are bound by the
guarantee of freedom of speech. Freedom of speech
extends to commercial establishments.

The mere fact that an advertisement is offensive cannot

justify its suppression.

The blocking of advertising funds is a threat intended to

prevent the exercise of freedom of speech of Destilleria
through the fear of consequences. Such a threat
qualifies as prior restraint.
ALTERNATIVE ANSWER:
They may comply with such call as these entities may
institute certain measures to promote a socially
desirable end, namely, the prevention of the exploitation
and abuse of women, especially those who are not yet
of age.

ALTERNATIVE ANSWER:
The GOCCs and sequestered corporations may not be
compelled to boycott or block advertising funds for
media companies carrying the said advertisements.

These companies may have existing contracts with the

media companies concerned and non-compliance may
result in breach that will open them to possible suits.
Nationwide protests have erupted over rising gas prices,
including disruptive demonstrations in many universities,
throughout the country. The Metro Manila State University, a
public university, adopted a university-wide circular prohibiting
public mass demonstrations and rallies within the campus.
Offended by the circular, militant students spread word that on
the following Friday, all students were to wear black T-shirts as
a symbol of their protest both against high gas prices and the
university ban on demonstrations.

University officials were outraged and compelled the student

leaders to explain why they should not be expelled for violating
the circular against demonstrations. The student leaders
approached you for legal advice. They contended that they
should not be expelled since they did not violate the circular,
their protest action being neither a demonstration nor a rally
since all they did was wear black T-shirts. What would you
advise the students? (6%)
The students should not be expelled. The wearing of
black shirts is an exercise of freedom of expression. For
the School to restrict it, such restriction must pass the
the clear and present danger test, that there is clear and
present danger of a substantive evil which the State has
the right to prevent.

the wearing of black shirts was neither tumultuous nor

disruptive. Thus, the substantive evil which the school
authorities were trying to suppress did not even occur.

Therefore, the prohibition imposed by the circular

violates freedom from prior restraint while the
threat of expulsion by the school authorities
violates freedom from subsequent liability.
The KKK Television Network (KKK-TV) aired the documentary,
"Case Law: How the Supreme Court Decides," obtaining the
necessary permit required by P.D. 1986. Consequently, the
Movie and Television Review and Classification Board
(MTRCB) suspended the airing of KKK-TV programs.
MTRCB declared that under P.D. 1986, it has the power of prior
review over all television programs, except "newsreels" and
programs "by the Government", and the subject documentary
does not fall under either of these two classes.

The suspension order was ostensibly based on Memorandum

Circular No. 98-17 which grants MTRCB the authority to issue
such an order. KKK-TV filed a certiorari petition in court, raising
the following issues:
(a) The act of MTRCB constitutes "prior restraint" and violates
the constitutionally guaranteed freedom of expression; (3%)
SUGGESTED ANSWER:

The contention of KKK-TV is not tenable. The prior restraint is a

valid exercise of police power. Television is a medium which
reaches even the eyes and ears of children. (Iglesia ni Cristo
vs. Court of Appeals, 259 SCRA 529 [1996]).

ALTERNATIVE ANSWER:

The memo circular is unconstitutional. The act of the Movie and

Television Review and Classification Board Constitutes prior
restraint and violates freedom of expression. Any system of
prior restraint has against it a heavy presumption against its
validity. Prior restraint is an abridgment of the freedom of
expression. There is no showing that the airing of the programs
would constitute a clear and present danger (New York Times
vs. United States, 403 U.S. 713 [1971]).
(b) While Memorandum Circular No. 98-17 was issued
and published in a newspaper of general circulation, a
copy thereof was never filed with the Office of the
National Register of the University of the Philippines
Law Center. (2%)

SUGGESTED ANSWER:

In accordance with Chapter 2, Book VII of the

Administrative Code of 1987, Memorandum Circular No.
98-17 must be filled with the University of the
Philippines Law Center. It cannot be enforced until it
has been filed with the University of the Philippines Law
Center (Pilipinas Shell Petroleum Corporation vs
Commissioner of Internal Revenue, 541 SCRA 316
[2007]).
Congress passes a law prohibiting television stations from
airing any commercial advertisement which promotes tobacco
or in any way glamorizes the consumption of tobacco products.

Cowboy's company, recently released an advertisement

featuring a model wearing jackets and jeans and holding a pack
of cigarettes. (ABN), a privately owned television station,
refuses to air the advertisement in compliance with the law.

a) Has ABN violated the constitutional prohibition against the

abridgement of the freedom of speech? Explain.

b) May Cowboy's, a private corporation, invoke the free speech

guarantee in its favor? Explain.

c) Regardless of your answers above, decide the

constitutionality of the law in question.
SUGGESTED ANSWER:

a) The constitutional prohibition against the freedom of speech does not

apply to ABN, a private corporation. As stated in Hudgens vs. National
Labor Relations Board, 424 U.S. 507, the constitutional guarantee of
freedom of speech is a guarantee only against
abridgement by the government. It does not therefore apply against
private parties.

b) Cowboy Levy's may invoke the constitutional guarantee of freedom of

speech in its favor. In First National Bank of Boston vs. Bellotti, 435 U.S.
765, it was ruled that this guarantee extends to corporations. In Virginia
State Board of Pharmacy vs. Virginia Citizens Consumer Council Inc., 425
U.S. 748, it was held that this right extends to commercial advertisements.
In Ayer Productions Pty, Ltd. vs. Capulong, 160 SCRA 861, the Supreme
Court held that even if the production of a film is a commercial activity that
is expected to yield profits, it is covered by the guarantee of freedom of
speech.

c) The law is constitutional. It is a valid exercise of police power

The STAR, a national daily newspaper, carried an exclusive
report stating that Senator XX received a house and lot located
at YY Street, Makati, in consideration for his vote cutting
cigarette taxes by 50%.

The Senator sued the STAR, its reporter, editor and publisher
for libel, claiming the report was completely false and malicious.
According to the Senator, there is no YY Street in Makati, and
the tax cut was only 20%. He claimed one million pesos in
damages.

The defendants denied "actual malice," claiming privileged

communication and absolute freedom of the press to report on
public officials and matters of public concern. If there was any
error, the STAR said it would publish the correction promptly. Is
there "actual malice" in STAR'S reportage? How is "actual
malice" defined? Are the defendants liable for damages? (5%)
FIRST ALTERNATIVE ANSWER:

Since Senator XX is a public person and the questioned imputation is

directed against him in his public capacity, in this case actual malice
means the statement was made with knowledge that it was false or
with reckless disregard of whether it was false or not (Borja v. Court of
Appeals, 301 SCRA 1 /1999). Since there is no proof that the report was
published with knowledge that it is false or with reckless disregard of
whether it was false or not, the defendants are not liable for damage.

SECOND ALTERNATIVE ANSWER:

Since Senator XX is a public person and the questioned imputation is

directed against him in his public capacity, in this case actual malice
means the statement was made with knowledge that it was false or with
reckless disregard of whether it was false or not (Borjal v. Court of
Appeals, 301 SCRA 1 /1999]). Since it is a matter of public knowledge that
there is no YY Street in Makati, the publication was made with reckless
disregard of whether or not it is false. The defendants may be held liable
for damages.
In the morning of August 28, 1987, during the height of -the
fighting at Channel 4 and Camelot Hotel, the military closed
Radio Station XX, which was excitedly reporting the successes
of the rebels and movements towards Manila and troops
friendly to the rebels. The reports were correct and factual.

On October 6, 1987, after normalcy had returned and the

Government had full control of the situation, the National
Telecommunications Commission, without notice and hearing,
but merely on the basis of the report of the military, cancelled
the franchise of station XX. Discuss the legality of:

(a) The action taken against the station on August 28, 1987;

(b) The cancellation of the franchise of the station on October 6,

1987
SUGGESTED ANSWER:

(a) The closing down of Radio Station XX during the fighting is

permissible. With respect news media, wartime censorship has been
upheld on the ground that "when a nation is at war many things that might
be said in time of peace are such a hindrance to its efforts that their
utterance will not be endured so long as men fight and that no Court could
regard them as protected by any constitutional right." The security of
community life may be protected against incitements to acts of violence
and the overthrow by force of orderly government. (Near v. Minnesota, 283
U.S. 697 (1931), quoting Justice Holme's opinion in Schenck v. United
States, 249 U.S. 47 (1919); New York Times v. United States, 403 U.S.
713 (1971) ) With greater reason then may censorship in times of
emergency be justified in the case of broadcast media since their freedom
is somewhat lesser in scope. The impact of the vibrant speech, as Justice
Gutierrez said, is forceful and immediate. Unlike readers of the printed
work, a radio audience has lesser opportunity to cogitate, analyze and
reject the utterance. (Eastern Broadcasting Corp (DYRE) v, Dans, 137
SCRA 647 (1985) ). In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), it
was held that "of all forms of communication, it is broadcasting which has
received the most limited First Amendment Protection."
END