IV

IV. Freedom of Expression
A. Protected Speech
Prior Restraint
#71 Near vs Minnesota
Facts:
The Saturday Press (the Press) published attacks on local
officials. The Press claimed that the chief of police had ―illicit
relations with gangsters.‖ Minnesota officials obtained an
injunction in order to abate the publishing of the Press
newspaper under a state law that allowed this course of
action. The state law authorized abatement, as a public
nuisance, of a ―malicious, scandalous and defamatory
newspaper, or other periodical. A state court order abated the
Press and enjoined the Defendants, publishers of the Press
(Defendants), from publishing or circulating such
―defamatory and scandalous‖ periodicals.
Issue:
Whether a statute authorizing such proceedings is consistent
with the conception of the liberty of the press as historically
conceived and guaranteed?
Holding:
No. Judgment of the state court reversed. The fact that the
liberty of press may be abused by miscreant purveyors of
scandal does not effect the requirement that the press has
immunity from previous restraints when it deals with official
misconduct. Subsequent punishment for such abuses as may
exist is the appropriate remedy, consistent with the
constitutional privilege. Therefore, a statute authorizing such
proceedings is not consistent with the conception of the
liberty of the press as historically conceived and guaranteed
and is thus, unconstitutional. The statute in question cannot
be justified by reason of the fact that the publisher is
permitted to show, before injunction issues, that the matter
published is true and is published with good motives and for
justifiable ends. This statute, if upheld, could lead to a
complete system of censorship. Thus, the statute is a
substantial infringement on the liberty of the press and in
violation of the Fourteenth Amendment of the Constitution.
#72 New York Times Co. v. United States [The Pentagon
Papers Case]
Brief Fact Summary. The Supreme Court of the United States
(Supreme Court) held that the Government failed to meet the
requisite burden of proof needed to justify a prior restraint of
expression when attempting to enjoin the New York Times
and Washington Post from publishing contents of a classified
study.

Synopsis of Rule of Law. Any system of prior restraints on
expression comes to the Supreme Court bearing a heavy
presumption against its invalidity. The Government ―thus
creates a heavy burden of showing justification for the
enforcement of such a restraint.‖
Facts. The United States sought to enjoin the New York Times
and Washington Post from publishing contents of a
confidential study about the Government‘s decision making
with regards to Vietnam policy. The District Court in the New
York Times case and the District Court and the Court of
Appeals in the Washington Post case held that the
Government had not met the requisite burden justifying such
a prior restraint.
Issue. Whether the United States met the heavy burden of
showing justification for the enforcement of such a restraint
on the New York Times and Washington Post to enjoin them
from publishing contents of a classified study?
Held. No. Judgments of the lower courts affirmed. The order
of the Court of Appeals for the Second Circuit is reversed and
remanded with directions to enter a judgment affirming the
District Court. The stays entered June 25, 1971, by the Court
are vacated. The mandates shall issue forthwith.
Dissent. The scope of the judicial function in passing upon
activities of the Executive Branch in the field of foreign affairs
is very narrowly restricted. This view is dictated by the
doctrine of Separation of Powers. The doctrine prohibiting
prior restraints does not prevent the courts from maintaining
status quo long enough to act responsibly.
The First Amendment is only part of the Constitution. The
cases should be remanded to be developed expeditiously.
Concurrence. To find that the President has ―inherent power‖
to halt the publication of news by resort to the courts would
wipe out the First Amendment of the United States
Constitution [Constitution].
The First Amendment of the Constitution leaves no room for
governmental restraint on the press. There is, moreover, no
statute barring the publication by the press of the material
that the Times and Post seek to publish.
The First Amendment of the Constitution tolerates no prior
judicial restraints of the press predicated upon surmise or
conjecture that untoward consequences may result. Thus,
only governmental allegation and proof that publication must
inevitably, directly and immediately cause the occurrence of
an event kindred to imperiling the safety of a transport
already at sea can support the issuance of an interim
restraining order. Unless and until the Government has
clearly made its case, the First Amendment of the
Constitution commands that no injunction be issued.
The responsibility must be where the power is. The Executive
must have the large duty to determine and preserve the
degree of internal security necessary to exercise its power
effectively. The Executive is correct with respect to some of
the documents here, but disclosure of any of them will not
result in irreparable danger to the public.
The United States has not met the very heavy burden, which
it must meet to warrant an injunction against publication in
these cases.
The ultimate issue in this case is whether this Court or the
Congress has the power to make this law. It is plain that
Congress has refused to grant the authority the Government
seeks from this Court.
Discussion. This very divided opinion shows how heavy the
Government‘s burden is to justify a prior restraint of
expression.
#73 Freedman v. Maryland
Facts:
A Maryland motion picture censorship statute required that
all films be submitted to a board of censors before being
exhibited. The board could ban films that were obscene,
debased or corrupted morals, or tended to incite crime.
There was no time limit on the decision-making process.
Appellant Freedman challenged the constitutionality of the
statute, due to the procedures to obtain approval. Appellant
exhibited the film "Revenge at Daybreak" at a movie theater
he owned without first submitting the picture to the State
Board of Censors as required by the statute. The State
conceded that the picture did not violate the statutory
standards and would have received a license if it had been
properly submitted. Appellant was convicted of violating the
statute despite his contention that the statute violated his
First Amendment freedom of expression. The Court of
Appeals of Maryland affirmed. Appellant appealed to the US
Supreme Court.
Issue:
Did the Maryland censorship statute requiring films to be
submitted to a censorship board violate First Amendment
rights, because there is no time limit on the decision-making
process?
Ruling:
"In the area of freedom of expression it is well established
that one has standing to challenge a statute on the ground
that it delegates overly broad licensing discretion to an
administrative office, whether or not his conduct could be
proscribed by a properly drawn statute and whether or not he
applied for a license… We think that appellant's assertion of a
similar danger in the Maryland apparatus of censorship-one
always fraught with danger and viewed with suspicion-gives
him standing to make that challenge. In substance his
argument is that, because the apparatus operates in a
statutory context in which judicial review may be too little
and too late, the Maryland statute lacks sufficient safeguards
for confining the censor's action to judicially determined
constitutional limits, and therefore contains the same vice as
a statute delegating excessive administrative discretion.
We hold that a noncriminal process which requires the prior
submission of a film to a censor avoids constitutional
infirmity only if it takes place under procedural safeguards
designed to obviate the dangers of a censorship system... The
teaching of our cases is that, because only a judicial
determination in an adversary proceeding ensures the
necessary sensitivity to freedom of expression, only a
procedure requiring a judicial determination suffices to
impose a valid final restraint. To this end, the exhibitor must
be assured, by statute or authoritative judicial construction
that the censor will, within a specified brief period, either
issue a license or go to court to restrain showing the film. Any
restraint imposed in advance of a final judicial determination
on the merits must similarly be limited to preservation of the
status quo for the shortest fixed period compatible with
sound judicial resolution. Moreover, we are well aware that,
even after expiration of a temporary restraint, an
administrative refusal to license, signifying the censor's view
that the film is unprotected, may have a discouraging effect
on the exhibitor. Therefore, the procedure must also assure a
prompt final judicial decision, to minimize the deterrent effect
of an interim and possibly erroneous denial of a license.
It is readily apparent that the Maryland procedural scheme
does not satisfy these criteria... Under the statute, appellant
could have been convicted if he had shown the film after
unsuccessfully seeking a license, even though no court had
ever ruled on the obscenity of the film... [I]t is abundantly
clear that the Maryland statute provides no assurance of
prompt judicial determination. We hold, therefore, that
appellant's conviction must be reversed. The Maryland
scheme fails to provide adequate safeguards against undue
inhibition of protected expression, and this renders the
Section 2 requirement of prior submission of films to the
Board an invalid previous restraint.
We think that the nature of the motion picture industry may
suggest different time limits for a judicial determination. It is
common knowledge that films are scheduled well before
actual exhibition, and the requirement of advance
submission in Section 2 recognizes this. One possible scheme
would be to allow the exhibitor or distributor to submit his
film early enough to ensure an orderly final disposition of the
case before the scheduled exhibition date-far enough in
advance so that the exhibitor could safely advertise the
opening on a normal basis... We do not mean to lay down
rigid time limits or procedures, but to suggest considerations
in drafting legislation to accord with local exhibition
practices, and in doing so to avoid the potentially chilling
effect of the Maryland statute on protected expression.
Reversed."
Subsequent Punishment
#74 People vs Perez
Facts: On April 1, 1922, in the municipality of Pilar, Province
of Sorsogon, Philippine Islands, the said accused, Isaac Perez,
while holding a discussion with several persons on political
matters, did criminally, unlawfully and wilfully and with
knowledge that Honorable Leonard Wood was the Governor-
General of the Philippine Islands and in the discharge of his
functions as such authority, insult by word, without his
presence, said Governor-General, uttering in a loud voice and
in the presence of many persons, and in a public place, the
following phrases: "Asin an mangña filipinos na caparejo co,
maninigong gumamit nin sundang asin haleon an payo ni
Wood huli can saiyang recomendacion sa pag raot con
Filipinas," which in English, is as follows: "And the Filipinos,
like myself, must use bolos for cutting off Wood's head for
having recommended a bad thing for the Philippines.
Charged in the Court of First Instance of Sorsogon with a
violation of article 256 of the Penal Code having to do with
contempt of ministers of the Crown or other persons in
authority, and convicted thereof, Perez has appealed the case
to this court. The question presented for decision is, What
crime, if any, did the accused commit?
The accused testified that the discussion was held in a
peaceful manner, and that what he wished to say was that
the Governor-General should be removed and substituted by
another.
Issue: Whether or not Perez should be punished for
expressing his ideas even if they only tended to create the evil
sought to be prevented?
Ruling: It may therefore be taken as settled doctrine, to which
those of us who retain a contrary opinion must bow with as
good grace as we can muster, that until otherwise decided by
higher authority, so much of article 256 of the Penal Code as
does not relate to ministers of the Crown or to writings
coming under the Libel Law, exist and must be enforced. To
which proposition, can properly be appended a corollary,
namely: Seditious words, speeches, or libels, constitute a
violation of Act No. 292, the Treason and Sedition Law, and to
this extent, both the Penal Code and the Libel Law are
modified.
It is of course fundamentally true that the provisions of Act
No. 292 must not be interpreted so as to abridge the freedom
of speech and the right of the people peaceably to assemble
and petition the Government for redress of grievances.
Criticism is permitted to penetrate even to the foundations of
Government. Criticism, no matter how severe, on the
Executive, the Legislature, and the Judiciary, is within the
range of liberty of speech, unless the intention and effect be
seditious. But when the intention and effect of the act is
seditious, the constitutional guaranties of freedom of speech
and press and of assembly and petition must yield to punitive
measures designed to maintain the prestige of constituted
authority, the supremacy of the constitution and the laws,
and the existence of the State. (III Wharton's Criminal Law,
pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People
vs. Perfecto, supra.)
In the words of the law, Perez has uttered seditious words.
He has made a statement and done an act which tended to
instigate others to cabal or meet together for unlawful
purposes. He has made a statement and done an act which
suggested and incited rebellious conspiracies. He has made a
statement and done an act which tended to stir up the people
against the lawful authorities. He has made a statement and
done an act which tended to disturb the peace of the
community and the safety or order of the Government. All of
these various tendencies can be ascribed to the action of
Perez and may be characterized as penalized by section 8 of
Act No. 292 as amended.
The result is to agree with the trial Judge in his findings of
fact, and on these facts to convict the accused of a violation
of section 8 of Act No. 292 as amended. With the modification
thus indicated, judgment is affirmed, it being understood
that, in accordance with the sentence of the lower court, the
defendant and appellant shall suffer 2 months and 1 day's
imprisonment and pay the costs.
#75 Dennis v US
Brief Fact Summary. The Petitioners, Dennis and others
(Petitioners) were convicted for (1) willfully and knowingly
conspiring to organize as the Communist Party of the United
States, a group whose members advocated the overthrow of
the United States government by force and (2) willfully and
knowingly advocating and teaching the duty to do the same.
The constitutionality of the statute under which the
Petitioners were convicted was challenged.

Synopsis of Rule of Law. For an impediment on free
expression to be permissible, the gravity of the evil,
discounted by its improbability of coming about, must
sufficiently outweigh the invasion of free speech necessary to
avoid the danger.
Facts.
Smith Act (the Act) made it a criminal offense for a person to
knowingly or willfully advocate the overthrowing of any
government in the United States by force or to attempt to
commit or conspire to commit the crime the same. The
Petitioners were brought up on charges under the Act for
allegedly (1) willfully and knowingly conspiring to organize as
the Communist Party of the United States, a group whose
members advocated the overthrow of the United States
government by force and (2) willfully and knowingly
advocating and teaching the duty to do the same. It was clear
from the record that the leaders of the Communist Party
intended to initiate a revolution when the opportunity came.
The Trial Court found the Petitioners guilty. The Court of
Appeals affirmed. The constitutionality of the statute under
which the Petitioners were convicted was challenged.
Issue. Was the statute invalid by its own terms because it
prohibited academic discussions on topics such as that of the
merits of Marxism-Leninism?
Held.
The Court of Appeals is affirmed.
Chief Justice Fred Vinson (J. Vinson) We must apply the
―clear and present danger‖ test. Accordingly, we note that the
overthrow of the Government by force is certainly a
substantial enough interest for the Government to limit
speech. Obviously, ―clear and present danger‖ does not mean
the government may not act until the Putsch has been
plotted and on is the verge of being executed.
On the facts, the court was convinced that the requisite
danger to act existed here: (1) the formation by the Petitioners
of a highly organized conspiracy with rigidly disciplined
members subject to call when the leaders (the Petitioners) felt
it was time for action; (2) the inflammable nature of world
conditions; (3) similar uprisings in other countries; and (4)
the touch and go nature of our relations with other countries
with whom the Petitioners were ideologically aligned. Thus,
the convictions of the Petitioners were justified.
Dissent.
Justice Hugo Black (Justice Black) While it is true that
unfettered communication of ideas does entail danger, the
benefits in the eyes of the Founders of this Nation, derived
from free expression were worth the risk.
Justice William Douglas (Justice Douglas) If this were a case
where the speaker was teaching techniques of sabotage, the
assassination of the President, or the planting of bombs, I
would concur in the judgment. But, the reality is that no
such evidence was introduced at trial.
Concurrence.
Justice Robert Jackson (J. Jackson) An individual cannot
claim the constitutional protections of the First Amendment
in advocating or teaching the overthrow of government by
violence. I think such conduct can be made a crime, even
without requiring a showing of an extremely high probability
of success of a scheme.
Justice Felix Frankfurter (J. Frankfurter) The results we have
reached are the product of a careful weighing of the following
factors: (1) that social value of the speech being prohibited;
(2) the chilling effect on legitimate speech that the
punishment of any form of speech may have; and (3) the
interest in the government in security.
#76 Abrams v. United States
Brief Fact Summary. The defendants‘ convictions for
distributing leaflets advocating strikes during the Russian
Revolution were upheld because their speech was not
protected by the United States Constitution (Constitution)
based on the ―clear and present danger‖ test.
Synopsis of Rule of Law. Men must be held to have intended
and to be accountable for the effects, which their acts are
likely to produce
Facts. The Defendants, Abrams and others (Defendants) were
Russian immigrants. The Defendant were self-proclaimed
revolutionists and anarchists who wrote and distributed
thousands of circulars advocating a general strike and
appealing to workers in ammunitions factories to stop the
production of weapons to be used against Russian
revolutionaries. They were convicted under 1918
amendments to the Espionage Act that prohibited the
curtailment of production of materials necessary to the
prosecution of war against Germany with intent to hinder its
prosecution.
Issue. Whether the Defendants‘ speech was protected by the
First Amendment of the Constitution?
Held. No. Men must be held to have intended and to be
accountable for the effects which their acts are likely to
produce. The plain purpose of Defendants‘ propaganda was
to excite, at the supreme crisis of war, disaffection, sedition,
riots and as they hoped, revolution in this country for the
purpose of embarrassing and if possible defeating the military
plans of the Government in Europe. Therefore, their speech is
not protected by the First Amendment of the Constitution.
Dissent. In this case, sentences of twenty years have been
imposed for the publishing of two leaflets that the Defendants
had as much right to publish as the Government had to
publish the Constitution.
Discussion. Clear and present danger supposedly assures
special attention to the time dimension. Speech may not be
curtailed until there is an immediate risk of an evil. Speech
with a remote tendency to cause danger may not be curtailed.
#77 EASTERN BROADCASTING CORPORATION (DYRE)
vs.DANS
FACTS:
This petition was filed to compel the respondents to allow the
reopening of Radio Station DYRE which had been summarily
closed on grounds of national security. The petitioner
contended that it was denied due process when it was closed
on the mere allegation that the radio station was used to
incite people to sedition. It alleged that no hearing was held
and not a bit of proof was submitted to establish a factual
basis for the closure. The petitioner was not informed
beforehand why administrative action which closed the radio
station was taken against it. No action was taken by the
respondents to entertain a motion seeking the
reconsideration of the closure action. The petitioner alleged
that it has already sold its radio broadcasting station in favor
of Manuel B. Pastranaas well as its rights and interest in the
radio station DYRE in Cebu including its right to operate and
its equipment, and that they are not anymore interested in
pursuing the case any further. The case has become moot
and academic. But, for the guidance of inferior courts and
administrative tribunals exercising quasi-judicial functions,
the Court still issued the guidelines regarding the matter.
ISSUE:
Whether or not there was denial of due process to the
petitioner.
HELD:
The government has a right to be protected against
broadcasts which incite the listeners to violently overthrow it.
Radio and television may not be used to organize a rebellion
or to signal the start of widespread uprising. At the same
time, the people have a right to be informed. Radio and
television would have little reason for existence if broadcasts
are limited to bland, obsequious, or pleasantly entertaining
utterances. Since they are the most convenient and popular
means of disseminating varying views on public issues, they
also deserve special protection. Broadcast stations deserve
the special protection given to all forms of media by the due
process and freedom of expression clauses of the
Constitution. The closure of the petitioner's radio station on
grounds of national security without elaboration of the
grounds and without hearing deserves to be condemned in no
uncertain terms for it is manifest that due process was not
observed. If there is an Idea which should be impressed in
the minds of those who wield power it is that power must be
used in a reasonable manner. Arbitrariness must be
eschewed Broadcast media while subject to government
licensing and regulation are equally protected by the
preferred freedoms of speech and of the press and by the
rudimentary requirements of due process against arbitrary
deprivation of life, liberty and property. The summary closure
in October, 1980 of petitioner's radio station ("definitely
attended by complete absence of any hearing before or after
the closure itself ") violated its constitutional rights and must
therefore be declared null and void.
―Speech Plus‖: Symbolic Speech
#78 United States v. O’Brien
Brief Fact Summary. The Defendant, O‘Brien (Defendant),
was convicted for symbolically burning his draft card under a
federal statute forbidding the altering of a draft card. His
conviction was upheld after the Supreme Court of the United
States (Supreme Court) found the law constitutional.
Synopsis of Rule of Law. First, a government regulation is
sufficiently justified if it is within the constitutional power of
the government. Second, if it furthers a substantial or
important governmental interest. Third, if the governmental
interest is unrelated to the suppression of free expression.
Fourth, if the incidental restriction on alleged First
Amendment constitutional freedoms is no greater than is
essential to the furtherance of that interest.
Facts. The Defendant was convicted under Section:462(b)(3)
of the Universal Military Training and Service Act (UMTSA) of
1948, amended in 1965 to include the applicable provision
that made it an offense to ―alter, knowingly destroy,
knowingly mutilate‖ a Selective Service registration
certification. Defendant knowingly burned his draft card on
the front steps of the local courthouse. The Court of Appeals
held the 1965 amendment unconstitutional as a law
abridging the freedom of speech.
Issue. Whether the 1965 Amendment is unconstitutional as
applied to Defendant because his act of burning the draft
card was protected ―symbolic speech‖ within the First
Amendment?
Whether the draft cards are merely pieces of paper designed
only to notify registrants of their registration or classification,
to be retained or tossed into the waste basket according to
the convenience of the registrant?
Whether the 1965 Amendment is unconstitutional as enacted
because it was intended to ―suppress freedom of speech?‖
Held. No. Judgment of the Court of Appeals reversed. It
cannot be accepted that there is an endless and limitless
variety of conduct that constitutes ―speech‖ whenever the
person engaging in the conduct intends to express an idea.
However, even if the alleged communicative element of
Defendant‘s conduct is sufficient to bring into play the First
Amendment of the United States Constitution (Constitution),
it does not necessarily follow that the destruction of a draft
card is constitutionally protected activity. First, a government
regulation is sufficiently justified if it is within the
constitutional power of the government. Second, if it furthers
a substantial or important governmental interest. Third, if the
governmental interest is unrelated to the suppression of free
expression. Fourth, if the incidental restriction on alleged
First Amendment constitutional freedoms is no greater than
is essential to the furtherance of that interest. The 1965
Amendment meets all these requirements. Therefore, the
1965 Amendment is constitutional as applied to Defendant.
No. Judgment of the Court of Appeals reversed. Although the
initial purpose of the draft card is to notify, it serves many
other purposes as well. These purposes would be defeated if
the card were to be mutilated or destroyed.
No. Judgment of the Court of Appeals reversed. The purpose
of Congress is not a basis for declaring this legislation
unconstitutional. Therefore, the 1965 Amendment is
constitutional as enacted.
Discussion. This case creates a symbolic speech test that was
used here to uphold the 1965 Amendment to the UMTSA.
#79 Tinker v. Des Moines Independent Community
School District
Brief Fact Summary. Tinker (Petitioner) was suspended from
school for showing his support of the anti-war movement.
Synopsis of Rule of Law. Student speech may be regulated
when such speech would materially and substantially
interfere with the discipline and operation of a school.
Facts. Petitioner was a high school student who joined his
parents in protesting the Vietnam War. The form of protest
was to wear a black armband for a period of two weeks
during the holiday season. When Petitioner arrived at school
he was told to remove the armband or be suspended. He took
the suspension and did not return to school until after the
protest period ended, New Year‘s Eve 1965.
Issue. Is symbolic speech by public school students protected
under the First Amendment?
Held. Yes. Students are persons worthy of constitutional
protections both while in school and out of school.
Dissent. The students are not wise enough to support or
reject a cause. It is best to leave the order of education to the
administrator‘s judgment.
Discussion. The wearing of the armband was singled out of
all other symbolic speech engaged in by the student body.
Clearly, this was designed to erase all opposition to the war
speech in the schools and was not related to any legitimate
purpose. There was no evidence that the wearing of the
armbands caused any disruption of any class or school
function.
Assembly and Petition
#80 Primicias v Fugoso

Doctrine: Clear and Present Danger Test, Freedom of
Assembly and Expression
FACTS: This case is an action of mandamus instituted by
petitioner Cipriano Primicias, manager of the Coalesced
Minority Parties, against respondent Manila City Mayor,
Valeriano Fugoso, to compel the latter to issue a permit for
the holding of a public meeting at the Plaza Miranda on Nov
16, 1947. The petitioner requested for a permit to hold a
―peaceful public meeting‖. However, the respondent refused
to issue such permit because he found ―that there is a
reasonable ground to believe, basing upon previous
utterances and upon the fact that passions, specially on the
part of the losing groups, remains bitter and high, that
similar speeches will be delivered tending to undermine the
faith and confidence of the people in their government, and in
the duly peace and a disruption of public order.‖ Respondent
based his refusal to the Revised Ordinances of 1927
prohibiting as an offense against public peace, and penalizes
as a misdemeanor, "any act, in any public place, meeting, or
procession, tending to disturb the peace or excite a riot; or
collect with other persons in a body or crowd for any unlawful
purpose; or disturb or disquiet any congregation engaged in
any lawful assembly." Included herein is Sec. 1119, Free use
of Public Place.
ISSUE: Whether or not the Mayor has the right to refuse to
issue permit hence violating freedom of assembly.
HELD: The answer is negative. Supreme Court states that
the freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are
fundamental personal rights of the people recognized and
guaranteed by the constitution. However, these rights are not
absolute. They can be regulated under the state‘s police
power – that they should not be injurious to the equal
enjoyment of others having equal rights, nor to the rights of
the community or society.
The Court holds that there can be 2 interpretations of Sec.
1119: 1) the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse, to grant permit for
the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of
Manila; and 2) The right of the Mayor is subject to reasonable
discretion to determine or specify the streets or public places
to be used with the view to prevent confusion by overlapping,
to secure convenient use of the streets and public places by
others, and to provide adequate and proper policing to
minimize the risk of disorder.
The court favored the second construction since the first
construction is tantamount to authorizing the Mayor to
prohibit the use of the streets. Under our democratic system
of government no such unlimited power may be validly
granted to any officer of the government, except perhaps in
cases of national emergency. It is to be noted that the permit
to be issued is for the use of public places and not for the
assembly itself.
The Court holds that the assembly is lawful and thus cannot
be struck down. Fear of serious injury cannot alone justify
suppression of free speech and assembly. It is the function of
speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech is
practiced. There must be reasonable ground to believe that
the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a
serious one . The fact that speech is likely to result in some
violence or in destruction of property is not enough to justify
its suppression. There must be the probability of serious
injury to the state.
PETITION IS GRANTED.
#81 Navarro v Villegas
431 Navarro vs. Villegas [GR L-31687, 26 February 1970]
Resolution: 1 concur in separate opinion, 2 dissented
Facts: Navarro requested for a permit to hold a meeting at
Plaza Miranda in the afternoon of 26 February 1970. The
Mayor of Manila, Villegas, instead offered the Sunken
Gardens, as an alternative to Plaza Miranda, as the site of the
demonstration. Mayor Villegas has not denied nor absolutely
refused the permit sought by Navarro. Navarro filedthe
petition for mandamus. The Court, after considering the
pleadings and arguments of the parties, issued a Resolution
without prejudice to a more extended opinion.
Issue: Whether the Mayor possesses discretion to determine
the public places to be used for assembly, i.e. the Sunken
Garden, instead of Plaza Miranda.
Held: As stated in Primicias v. Fugoso (80 Phil. 75), the Mayor
possesses reasonable discretion to determine or specify the
streets or public places to be used for the assembly in order
to secure convenient use thereof by others and provide
adequate and proper policing to minimize the risks of
disorder and maintain public safety and order. The Mayor
has expressly stated his willingness to grant permits for
peaceful assemblies at Plaza Miranda during Saturdays,
Sundays and holidays when they would not cause
unnecessarily great disruption of the normal activities of the
community and has further offered Sunken Gardens as an
alternative to Plaza Miranda as the site of the demonstration
sought to be held in the afternoon of 26 February 1970.
Experiences in connection with present assemblies and
demonstrations do not warrant the Court's disbelieving the
Mayor's appraisal that a public rally at Plaza Miranda, as
compared to one at the Sunken Gardens as he suggested,
poses a clearer and more imminent danger of public
disorders, breaches of the peace, criminal acts, and even
bloodshed as an aftermath of such assemblies, and petitioner
has manifested that it has no means of preventing such
disorders. Consequently, every time that such assemblies are
announced, the community is placed in such a state of fear
and tension that offices are closed early and employees
dismissed, storefronts boarded up, classes suspended, and
transportation disrupted, to the general detriment of the
public. Civil rights and liberties can exist and be preserved
only in an ordered society. Navarro has failed to show a clear
specific legal duty on the part of Mayor to grant their
application for permit unconditionally.
#82 PBM Employees vs PBM (supra)
Facts:
The petitioner Philippine Blooming Mills Employees
Organization (PBMEO) is a legitimate labor union composed
of the employees of the respondent Philippine Blooming Mills
Co., Inc., and petitioners. Benjamin Pagcu and Rodulfo
Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to
stage a mass demonstration at Malacañang on March 4,
1969, in protest against alleged abuses of the Pasig police.
PBMEO thru Pagcu confirmed the planned demonstration
and stated that the demonstration or rally cannot be
cancelled because it has already been agreed upon in the
meeting. Pagcu explained further that the demonstration has
nothing to do with the Company because the union has no
quarrel or dispute with Management. The Management, thru
Atty. C.S. de Leon, Company personnel manager, informed
PBMEO that the demonstration is an inalienable right of the
union guaranteed by the Constitution but emphasized that
any demonstration for that matter should not unduly
prejudice the normal operation of the Company. Workers who
without previous leave of absence approved by the Company,
particularly, the officers present who are the organizers of the
demonstration, who shall fail to report for work the following
morning shall be dismissed, because such failure is a
violation of the existing CBA and, therefore, would be
amounting to an illegal strike. Because the petitioners and
their members numbering about 400 proceeded with the
demonstration despite the pleas of the respondent Company
that the first shift workers should not be required to
participate in the demonstration and that the workers in the
second and third shifts should be utilized for the
demonstration from 6 A.M. to 2 P.M. on March 4, 1969, filed
a charge against petitioners and other employees who
composed the first shift, for a violation of Republic Act No.
875(Industrial Peace Act), and of the CBA providing for 'No
Strike and No Lockout.' Petitioners were held guilty in by CIR
for bargaining in bad faith, hence this appeal.
Issue:
Whether or Not the petitioners right to freedom of speech and
to peaceable assemble violated.
Held:
Yes. A constitutional or valid infringement of human rights
requires a more stringent criterion, namely existence of a
grave and immediate danger of a substantive evil which the
State has the right to prevent. This is not present in the case.
It was to the interest herein private respondent firm to rally to
the defense of, and take up the cudgels for, its employees, so
that they can report to work free from harassment, vexation
or peril and as consequence perform more efficiently the
irrespective tasks enhance its productivity as well as profits.
Herein respondent employer did not even offer to intercede for
its employees with the local police. In seeking sanctuary
behind their freedom of expression well as their right of
assembly and of petition against alleged persecution of local
officialdom, the employees and laborers of herein private
respondent firm were fighting for their very survival, utilizing
only the weapons afforded them by the Constitution—the
untrammelled enjoyment of their basic human rights. The
pretension of their employer that it would suffer loss or
damage by reason of the absence of its employees from 6
o'clock in the morning to 2 o'clock in the afternoon, is a plea
for the preservation merely of their property rights. The
employees' pathetic situation was a stark reality—abused,
harassment and persecuted as they believed they were by the
peace officers of the municipality. As above intimated, the
condition in which the employees found themselves vis-a-vis
the local police of Pasig, was a matter that vitally affected
their right to individual existence as well as that of their
families. Material loss can be repaired or adequately
compensated. The debasement of the human being broken in
morale and brutalized in spirit-can never be fully evaluated in
monetary terms. As heretofore stated, the primacy of human
rights—freedom of expression, of peaceful assembly and of
petition for redress of grievances
—over property rights has been sustained. To regard the
demonstration against police officers, not against the
employer, as evidence of bad faith in collective bargaining and
hence a violation of the collective bargaining agreement and a
cause for the dismissal from employment of the
demonstrating employees, stretches unduly the compass of
the collective bargaining agreement, is "a potent means of
inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition. Circulation
is one of the aspects of freedom of expression. If
demonstrators are reduced by one-third, then by that much
the circulation of the Issue raised by the demonstration is
diminished. The more the participants, the more persons can
be apprised of the purpose of the rally. Moreover, the absence
of one-third of their members will be regarded as a
substantial indication of disunity in their ranks which will
enervate their position and abet continued alleged police
persecution.
#83 J.B.L. Reyes vs. Bagatsing, GR No. 65366 October 25,
1983
FACTS:
Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases
Coalition, sought for a permit from the City of Manila to hold
a peaceful march and rally on October 26, 1983 starting from
Luneta to the gates of the United States embassy. The
objective of the rally was to peacefully protest the removal of
all foreign military bases and to present a petition containing
such to a representative of the Embassy so it may be
delivered to the United States Ambassador. This petition was
to initially compel the Mayor of the City of Manila to make a
decision on the application for a permit but it was discovered
that a denial has already been sent through mail. It also
included a provision that if it be held somewhere else, permit
may be issued. The respondent mayor alleges that holding
the rally in front of the US Embassy is a violation of the
resolutions during the Vienna Convention on Diplomatic
Relations adopted in 1961 and of which the Philippines is a
signatory. In the doctrine of incorporation, the Philippines
has to comply with such generally accepted principles of
international law as part of the law of the land. The
petitioner, on the other hand, contends that the denial of the
permit is a violation of the constitutional right of the freedom
of speech and expression.
ISSUE: WON denial of a public rally on a public park and the
US Embassy is a violation of constitutional guarantee to free
speech and assembly.

HELD:
Yes. The invocation of the right to freedom of peaceable
assembly carries with it the implication that the right to free
speech has likewise been disregarded. It is settled law that as
to public places, especially so as to parks and streets, there is
freedom of access.
The Supreme Court ruled to allow the rally in front of the US
Embassy to protect the exercise of the rights to free speech
and peaceful assembly and on the ground that there was no
showing of the existence of a clear and present danger of a
substantive evil that could justify the denial of the permit. As
a signatory of the Vienna Convention on Diplomatic Relations
adopted in 1961, the Philippines, as the receiving State is
under a special duty to take appropriate steps to protect the
premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission or
impairment of its dignity. The Constitution adopts the
generally accepted principles of international law as part of
the law of the land. The Vienna Convention should be part of
the law of the land since it is a restatement of the generally
accepted principles of international law. Respondent would
only be justified in denying petitioner‘s application if there
were a clear and present danger of any intrusion or damage,
or disturbance of the peace of the mission, or impairment of
its dignity insofar as the terminal point would be the
Embassy. Moreover, respondent Mayor relied on Ordinance
No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of 500
feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra
vires, its invocation as a defense is understandable but not
decisive, in view of the primacy accorded the constitutional
rights of free speech and peaceable assembly.
#84 Malabanan vs Rameto
Facts: Petitioners were officers of the Supreme Student
Council of Respondent University. They sought and were
granted by the school authorities a permit to hold a meeting
from 8am to 12am. Pursuant to such permit, along with other
students, they held a general assembly at the Veterinary
Medicine and Animal Science (VMAS)Basketball Court. The
place indicated in such permit, not in the basketball court as
therein stated, but at the second floor lobby. At such
gathering, they manifested in vehement and vigorous
language their opposition to the proposed merger of the
Institute of Animal Science. They continued their language
severely critical of the university authorities and using
megaphones in the process. There was, as a result,
disturbance of classes being held. Also, non academic
employees within hearing distance, stopped their work
because of noise created. They were asked to explain why
they should not be held liable for holding an assembly.
Issue: Whether or not the suspension of students for one
academic year was violative of the constitutional rights of
freedom of assembly and free speech?
Decision: Yes, necessarily their exercise to discuss matters
affecting their welfare or involving public interest is not
subjected to previous restraint or subsequent punishment
unless there be a showing of clear and present danger to a
substantive evil that the State has a right to prevent. The
peaceable character of an assembly could be lost, however, by
an advocacy or disorder. If assembly is to be held in school
premises, permit must be sought from its school authorities
who are devoid to deny such request. In granting such
permit, there may be conditions as to the time and place of
an assembly to avoid disruption of classes or stoppage of
work of non-academic personnel. However, in violation of
terms, penalty incurred should not be disproportionate to the
offense.
Free Speech and Suffrage
#85 Gonzalez v COMELC
Facts: Two new sections were included in the Revised
Election Code, under Republic Act 4880, which was approved
and took effect on 17 June 1967, prohibiting the too early
nomination of candidates and limiting the period of election
campaign or partisan political activity. On 22 July 1967,
Arsenio Gonzales and Felicisimo R. Cabigao filed an action
entitled "Declaratory Relief with Preliminary Injunction," a
proceeding that should have been started in the Court of
First Instance, but treated by the Supreme Court as one of
prohibition in view of the seriousness and the urgency of the
constitutional issue raised. Gonzales and Cabigao alleged
that the enforcement of said RA 4880 would prejudice their
basic rights, such as their freedom of speech, their freedom
of assembly and their right to form associations or societies
for purposes not contrary to law, guaranteed under the
Philippine Constitution," and that therefore said act is
unconstitutional. Cabigao was, at the time of the filing of the
petition, an incumbent councilor in the 4th District of Manila
and the Nacionalista
Party official candidate for Vice-Mayor of Manila to which he
was subsequently elected on 11 November 1967; while
Gonzales is a private individual, a registered voter in the City
of Manila and a political leader of his co-petitioner.
Issue: Whether the freedom of expression may be limited.
Held: The primacy, the high estate accorded freedom of
expression is of course a fundamental postulate of our
constitutional system. No law shall he passed abridging the
freedom of speech or of the press. It embraces, at the very
least, free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public
interest without censorship or punishment. There is to be
then no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of substantive evil
that Congress has a right to prevent. The vital need in a
constitutional democracy for freedom of expression is
undeniable whether as a means of assuring individual self-
fulfillment, of attaining the truth, of securing participation
by the people in social including political decision-making,
and of maintaining the balance between stability and change.
The trend as reflected in Philippine and American decisions is
to recognize the broadest scope and assure the widest
latitude to this constitutional guaranty. It represents a
profound commitment to the principle that debate of public
issue should be uninhibited, robust, and wide-open. It is not
going too far to view the function of free speech as inviting
dispute. "It may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."
Freedom of speech and of the press thus means something
more than the right to approve existing political beliefs or
economic arrangements, to lend support to official measures,
to take refuge in the existing climate of opinion on any matter
of public consequence. So atrophied, the right becomes
meaningless. The right belongs as well, if not more, for those
who question, who do not conform, who differ. To paraphrase
Justice Holmes, it is freedom for the thought that we hate, no
less than for the thought that agrees with us.
From the language of the specific constitutional provision, it
would appear that the right is not susceptible of any
limitation. No law may be passed abridging the freedom of
speech and of the press. The realities of life in a complex
society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist
that at all times and under all circumstances it should
remain unfettered and unrestrained. There are other societal
values that press for recognition. Two tests that may supply
an acceptable criterion for permissible restriction. These are
the "clear and present danger" rule and the "dangerous
tendency" rule. The Court is of the view that no
unconstitutional infringement exists insofar as the formation
of organizations, associations, clubs, committees, or other
groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda or both for or
against a candidate or party is restricted and that the
prohibition against giving, soliciting, or receiving contribution
for election purposes, either directly or indirectly, is equally
free from constitutional infirmity. The restriction on freedom
of assembly as confined to holding political conventions,
caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or
undertaking any campaign or propaganda or both for or
against a candidate or party, leaving untouched all other
legitimate exercise of such poses a more difficult question.
Nevertheless, after a thorough consideration, it should not be
annulled. The other acts, likewise deemed included in
"election campaign" or "partisan political activity" tax to the
utmost the judicial predisposition to view with sympathy
legislative efforts to regulate election practices deemed
inimical, because of their collision with the preferred right of
freedom of expression. The scope of the curtailment to which
freedom of expression may be subjected is not foreclosed by
the recognition of the existence of a clear and present danger
of a substantive evil, the debasement of the electoral process.
The majority of the Court is of the belief that the ban on the
solicitation or undertaking of any campaign or propaganda,
whether directly or indirectly, by an individual, the making of
speeches, announcements or commentaries or holding
interview for or against the election for any party or candidate
for public office, or the publication or distribution of
campaign literature or materials, suffers from the corrosion of
invalidity. It lacks however one more affirmative vote to call
for a declaration of unconstitutionality. The necessary 2/3
vote, however, not being obtained, there is no occasion for the
power to annul statutes to come into play. Such being the
case, it is the judgment of the Court that RA 4880 cannot be
declared unconstitutional.
#86 Pablito V. Sanidad, Petitioner, vs.The Commission On
Elections, Respondent.
Facts:
On October 23, 1989, Republic Act No. 6766, entitled "AN
ACT PROVIDING FOR AN ORGANIC ACT FOR THE
CORDILLERAAUTONOMOUS REGION" was enacted into law.
Pursuant to said law, the City of Baguio and the Cordilleras
which consist of the provinces of Benguet, Mountain
Province, Ifugao, Abra and Kalinga-Apayao, all comprising the
Cordillera Autonomous Region, shall take part in a plebiscite
for the ratification of said Organic Act. The Commission on
Elections, by virtue of the power vested by the1987
Constitution, the Omnibus Election Code (BP 881), said R.A.
6766 and other pertinent election laws, promulgated
Resolution No. 2167, to govern the conduct of the plebiscite
on the said Act.
In a petition dated November 20, 1989, herein petitioner
Pablito V. Sanidad, who claims to be a newspaper columnist
of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a
weekly newspaper circulated in the City of Baguio and the
Cordilleras, assailed the constitutionality of Section 19 of
COMELEC Resolution No. 2167, which provides prohibition
on columnists, commentators or announcers.
During the plebiscite campaign period, on the day before and
on the plebiscite day, no mass media columnist,
commentator, announcer or personality shall use his column
or radio or television time to campaign for or against the
plebiscite Issue. It is alleged by petitioner that said provision
is void and unconstitutional because it violates the
constitutional guarantees of the freedom of expression and of
the press enshrined in the Constitution. Unlike a regular
news reporter or news correspondent who merely reports the
news, petitioner maintains that as a columnist, his column
obviously and necessarily contains and reflects his opinions,
views and beliefs on any issue or subject about which he
writes. Petitioner likewise maintains that if media
practitioners were to express their views, beliefs and opinions
on the issue submitted to a plebiscite, it would in fact help in
the government drive and desire to disseminate information,
and hear, as well as ventilate, all sides of the issue.
Issue:
Whether or not Section 19 of COMELEC Resolution No. 2167
is unconstitutional?
Held:
The Supreme Court ruled that Section 19 of COMELEC
Resolution No. 2167 is unconstitutional. It is clear from Art.
IX-C of the 1987 Constitution that what was granted to the
COMELEC was the power to supervise and regulate the use
and enjoyment of franchises, permits or other grants issued
for the operation of transportation or other public utilities,
media of communication or information to the end that equal
opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information
campaigns and forums among candidates are ensured. The
evil sought to be prevented by this provision is the possibility
that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or
radio or television time. This is also the reason why a
"columnist, commentator, announcer or personality, who is a
candidate for any elective office is required to take a leave of
absence from his work during the campaign period (2nd par.
Section 11(b) R.A. 6646).
It cannot be gainsaid that a columnist or commentator who is
also a candidate would be more exposed to the voters to the
prejudice of other candidates unless required to take a leave
of absence.
However, neither Article IX-C of the Constitution nor Section
11 (b), 2nd par. of R.A. 6646 can be construed to mean that
the COMELEC has also been granted the right to supervise
and regulate the exercise by media practitioners themselves
of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during
plebiscite periods are neither the franchise holders nor the
candidates. In fact, there are no candidates involved in a
plebiscite. Therefore, Section 19 of COMELEC Resolution No.
2167 has no statutory basis. Plebiscite Issue are matters of
public concern and importance. The people's right to be
informed and to be able to freely and intelligently make a
decision would be better served by access to an unabridged
discussion of the Issue, including the forum. The people
affected by the Issue presented in a plebiscite should not be
unduly burdened by restrictions on the forum where the right
to expression may be exercised. COMELEC spaces and radio
time may provide a forum for expression but they do not
guarantee full dissemination of information to the public
concerned because they are limited to either specific portions
in newspapers or to specific radio or television times. The
instant petition is GRANTED. Section 19 of COMELEC
Resolution No. 2167 is declared null and void and
unconstitutional.
#87 National Press Club v COMELEC
Facts:
Petitioners in these cases consist of representatives of the
mass media which are prevented from selling or donating
space and time for political advertisements; two (2)
individuals who are candidates for office (one for national and
the other for provincial office) in the coming May
1992elections; and taxpayers and voters who claim that their
right to be informed of election Issue and of credentials of the
candidates is being curtailed. It is principally argued by
petitioners that Section 11 (b) of Republic Act No. 6646
invades and violates the constitutional guarantees comprising
freedom of expression. Petitioners maintain that the
prohibition imposed by Section11 (b) amounts to censorship,
because it selects and singles out for suppression and
repression with criminal sanctions, only publications of a
particular content, namely, media-based election or political
propaganda during the election period of 1992. It is asserted
that the prohibition is in derogation of media's role, function
and duty to provide adequate channels of public information
and public opinion relevant to election Issue. Further,
petitioners contend that Section 11 (b)abridges the freedom of
speech of candidates, and that the suppression of media-
based campaign or political propaganda except those
appearing in the Comelec space of the newspapers and on
Comelec time of radio and television broadcasts, would bring
about a substantial reduction in the quantity or volume of
information concerning candidates and Issue in the election
thereby curtailing and limiting the right of voters to
information and opinion.
Issue:
Whether or Not Section 11 (b) of Republic Act No. 6646
constitutional.
Held:
Yes. It seems a modest proposition that the provision of the
Bill of Rights which enshrines freedom of speech, freedom of
expression and freedom of the press has to be taken in
conjunction with Article IX (C) (4) which may be seen to be a
special provision applicable during a specific limited period—
i.e., "during the election period." In our own society, equality
of opportunity to proffer oneself for public office, without
regard to the level of financial resources that one may have at
one's disposal, is clearly an important value. One of the basic
state policies given constitutional rank by Article II, Section
26 of the Constitution is the egalitarian demand that" the
State shall guarantee equal access to opportunities for public
service and prohibit political dynasties as may be defined by
law." The essential question is whether or not the assailed
legislative or administrative provisions constitute a
permissible exercise of the power of supervision or regulation
of the operations of communication and information
enterprises during an election period, or whether such act
has gone beyond permissible supervision or regulation of
media operations so as to constitute unconstitutional
repression of freedom of speech and freedom of the press. The
Court considers that Section 11 (b) has not gone outside the
permissible bounds of supervision or regulation of media
operations during election periods. Section 11 (b) is limited in
the duration of its applicability and enforceability. By virtue
of the operation of Article IX (C) (4) of the Constitution,
Section 11 (b) is limited in its applicability in time to election
periods. Section 11 (b) does not purport in any way to restrict
the reporting by newspapers or radio or television stations of
news or news-worthy events relating to candidates, their
qualifications, political parties and programs of government.
Moreover, Section 11 (b) does not reach commentaries and
expressions of belief or opinion by reporters or broadcasters
or editors or commentators or columnists in respect of
candidates, their qualifications, and programs and so forth,
so long at least as such comments, opinions and beliefs are
not in fact advertisements for particular candidates covertly
paid for. In sum, Section 11 (b) is not to be read as reaching
any report or commentary other coverage that, in responsible
media, is not paid for by candidates for political office.
Section 11 (b) as designed to cover only paid political
advertisements of particular candidates. The limiting impact
of Section 11 (b) upon the right to free speech of the
candidates themselves is not unduly repressive or
unreasonable.
#88 ADIONG v. COMELEC
FACTS:
On January 13, 1992, the COMELEC promulgated Resolution
No. 2347 pursuant to its powers granted by the Constitution,
the Omnibus Election Code, Republic Acts Nos. 6646 and
7166 and other election laws. Section 15(a) of the resolution
provides:
Sec. 15.Lawful Election Propaganda. The following are lawful
election propaganda:
(a) Pamphlets, leaflets, cards, decals… Provided, That decals
and stickers may be posted only in any of the authorized
posting areas provided in paragraph (f) of Section 21 hereof.
Section 21 (f) of the same resolution provides:
Sec. 21(f). Prohibited forms of election propaganda.
It is unlawful:
(f) To draw, paint, inscribe, post, display or publicly exhibit
any election propaganda in any place, whether public or
private, mobile or stationary, except in the COMELEC
common posted areas and/or billboards.
Petitioner BloUmparAdiong, a senatorial candidate in the May
11, 1992 elections assails the COMELEC‘s Resolution insofar
as it prohibits the posting of decals and stickers in ―mobile‖
places like cars and other moving vehicles. According to him
such prohibition is violative of Section 82 of the Omnibus
Election Code and Section 11(a) of Republic Act No. 6646.
ISSUE:
Whether or not the COMELEC may prohibit the posting of
decals and stickers on ―mobile‖ places, public or private, and
limit their location or publication to the authorized posting
areas that it fixes.
HELD:
The petition is hereby GRANTED. The portion of Section 15
(a) of Resolution No. 2347 of the COMELEC providing that
―decals and stickers may be posted only in any of the
authorized posting areas provided in paragraph (f) of Section
21 hereof‖ is DECLARED NULL and VOID. The COMELEC‘s
prohibition on posting of decals and stickers on ―mobile‖
places whether public or private except in designated areas
provided for by the COMELEC itself is null and void on
constitutional grounds. The prohibition unduly infringes on
the citizen‘s fundamental right of free speech enshrined in
the Constitution (Sec. 4, Article III). Significantly, the freedom
of expression curtailed by the questioned prohibition is not so
much that of the candidate or the political party. The
regulation strikes at the freedom of an individual to express
his preference and, by displaying it on his car, to convince
others to agree with him.
Also, the questioned prohibition premised on the statute (RA
6646) and as couched in the resolution is void for
overbreadth. The restriction as to where the decals and
stickers should be posted is so broad that it encompasses
even the citizen‘s private property, which in this case is a
privately-owned vehicle (The provisions allowing regulation
are so loosely worded that they include the posting of decals
or stickers in the privacy of one‘s living room or bedroom.) In
consequence of this prohibition, another cardinal rule
prescribed by the Constitution would be violated. Section 1,
Article III of the Bill of Rights provides that no person shall be
deprived of his property without due process of law. (The
right to property may be subject to a greater degree of
regulation but when this right is joined by a ―liberty‖ interest,
the burden of justification on the part of the Government
must be exceptionally convincing and irrefutable. The burden
is not met in this case.)
Additionally, the constitutional objective to give a rich
candidate and a poor candidate equal opportunity to inform
the electorate as regards their candidacies, mandated by
Article II, Section 26 and Article XIII, section 1 in relation to
Article IX (c) Section 4 of the Constitution, is not impaired by
posting decals and stickers on cars and other private
vehicles. It is to be reiterated that the posting of decals and
stickers on cars, calesas, tricycles, pedicabs and other
moving vehicles needs the consent of the owner of the vehicle.
Hence, the preference of the citizen becomes crucial in this
kind of election propaganda not the financial resources of the
candidate.
In sum, the prohibition on posting of decals and stickers on
―mobile‖ places whether public or private except in the
authorized areas designated by the COMELEC becomes
censorship which cannot be justified by the Constitution.
Use of private property as a form for others‘ speech
#89 PruneYard Shopping Center v. Robins
Brief Fact Summary. Students wanted to distribute literature
at a large shopping center, but the owners wanted to deny
them access to the property.
Synopsis of Rule of Law. A state law which requires owners of
large shopping enters to allow members of the public to enter
their property to distribute petitions does not constitute a
taking of property, even though the law limits the property
owner‘s right to exclude others from its property.
Facts. PruneYard (Appellant) is a shopping center open to the
public. It has a policy not to permit any visitor or tenant to
engage in any publicly expressive activity, including the
circulation of petitions, which is not directly related to its
commercial purposes. High school students (Appellees) set up
a table in a corner of Appellant‘s courtyard and distributed
pamphlets in support for their opposition to a United Nations
resolution against Zionism. A security guard told them to
leave. Appellees seek to enjoin Appellants from denying them
access to the property to circulate their petitions. Appellants
content that their constitutionally established rights under
the Fourteenth Amendment to exclude Appellees from
adverse use of their private property cannot be denied by
invocation of a state constitutional provision or by judicial
reconstruction of a state‘s laws.
Issue. When a large shopping center is required to allow free
expression and petition on its property, will that amount to a
taking?
Held. No.
The determination of whether a state law unlawfully infringes
a landowner‘s property in violation of the taking clause
requires an examination of whether the restriction on private
property forces some people alone to bear public burdens
which, in all fairness and justice, should be born by the
public as a whole. This includes inquiring into such factors
as the character of the governmental action, its economic
impact, and its interference with reasonable investment-
backed expectations.

The requirement that appellants permit the students to
exercise their protected rights of free expression and to
petition on shopping center property clearly does not amount
to an unconstitutional infringement of appellants‘ property
rights under the taking clause. It will not unreasonably
impair the value or use of their property as a shopping
center. The shopping center may restrict expressive activity
by adopting time, place, and manner regulations that will
minimize any interference with its commercial functions.
Appellants have failed to show that the right to exclude
others is so essential to the use or economic value of their
property that the state-authorized limitation of it amounted
to a taking.
Concurrence.
(Justice Thurgood Marshall) Justice Marshall did not
understand why the Court suggested that rights of property
are to be defined solely by state law, or that there is no
federal constitutional barrier to the abrogation of common-
law rights by Congress or a state government. Quite serious
constitutional questions might be raised if a legislature
attempted to abolish certain categories of common-law rights
in some general way.
(Justice Lewis F. Powell, Jr.) The state may not compel a
person to affirm a belief he does not hold. A property owner
may be faced with speakers who wish to use his premises as
a platform for views that he finds morally repugnant. The
strong emotions evoked by speech in such situations may
virtually compel the proprietor to respond.
Discussion. The property in this case is open to the public,
very large, and the physical invasion is only temporary and
confined to a small area. The interest of the owners of the
shopping center is small compared to the right of expression.
B. Unprotected Speech
Defamatory Speech
# 90 POLICARPIO vs. MANILA TIMES
FACTS:
Plaintiff Lumen Policarpio seeks to recover actual damages of
the two (2) articles or news items which are claimed to be per
se defamatory, libelous and false, and to have exposed her to
ridicule, jeopardized her integrity, good name and business
and official transactions, and caused her grave
embarrassment, untold and extreme moral, mental and
physical anguish and incalculable material, moral,
professional and business damages. The defendants are The
Manila Times Publishing Co., Inc., as publisher and the
reporter or author of the first article and the managing editor,
the associate editor and the news editor, respectively, of said
newspapers.
After the denial of the motion to dismiss the complaint, the
defendants filed a joint answer admitting the formal
allegations of the complaint, denying the other allegations
thereof, alleging special defenses and setting up financial
counterclaim for all the expenses. In due course, later on,
said court rendered the aforementioned decision, upon the
ground that plaintiff had not proven that defendants had
acted maliciously in publishing the aforementioned articles,
although portions thereof were inaccurate or false. Hence,
this appeal.
ISSUE:
Whether or not the said article are malicious and libellous.
HELD:
Yes. In the case at bar, aside from containing information
derogatory to the plaintiff, the article published on August
11, 1956, presented her in a worse predicament than that in
which she, in fact, was. In other words, said article was not a
fair and true report of the proceedings there in alluded to.
What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON
FRAUD" — is a comment or remark, besides being false.
We note that the news item published on August 13, 1956,
rectified a major inaccuracy contained in the first article, by
stating that neither Col. Alba nor the PCAC had filed the
aforementioned complaints with the city fiscal's office. It,
likewise, indicated the number of sheets of stencil involved in
said complaints. But, this rectification or clarification does
not wipe out the responsibility arising from the publication of
the first article, although it may and should mitigate it
(Jimenez vs. Reyes, 27 Phil. 52).
It goes without saying that newspapers must enjoy a certain
degree of discretion in determining the manner in which a
given event should be presented to the public, and the
importance to be attached thereto, as a news item, and that
its presentation in a sensational manner is not per se illegal.
Newspaper may publish news items relative to judicial,
legislative or other official proceedings, which are not of
confidential nature, because the public is entitled to know
the truth with respect to such proceedings, which, being
official and non-confidential, are open to public consumption.
But, to enjoy immunity, a publication containing derogatory
information must be not only true, but, also, fair, and it must
be made in good faith and without any comments or remarks.
#91 Lopez vs CA
Facts:
In the early part of January, 1956, there appeared on the
front page of The Manila Chronicle, of which petitioner Lopez
was the publisher, as well as on other dailies, a news story of
a sanitary inspector assigned to the Babuyan Islands, Fidel
Cruz, sending a distress signal to a passing United States Air
force plane which in turn relayed the message to Manila. An
American Army plane dropping on the beach of an island an
emergency-sustenance kit containing, among other things, a
two-way radio set. He utilized it to inform authorities in
Manila that the people in the place were living in terror, due
to a series of killings committed since Christmas of 1955.
Losing no time, the Philippines defense establishment rushed
to the island a platoon of scout rangers. Upon arriving Major
Encarnacion and his men found, instead of the alleged
killers, a man named Fidel Cruz who merely wanted
transportation home to Manila. In view of this finding, Major
Encarnacion branded as a "hoax," the report of respondent.
This Week Magazine of the Manila Chronicle, then edited by
Gatbonton, devoted a pictorial article to it in its issue of
January 15, 1956. Mention was made that while Fidel Cruz‗
story turned out to be false it brought attention to the
government that people in that most people in the area are
sick sick, only two individuals able to read and write, food
and clothing being scarce. The magazine carried photographs
of the person purporting to be Fidel Cruz. Unfortunately, the
pictures that were published were that of private respondent
Fidel G. Cruz, a businessman contractor from Santa Maria,
Bulacan. It turned out that the photographs of respondent
Cruz and that of Fidel Cruz, sanitary inspector, were on file
in the library of the Manila Chronicle but when the news quiz
format was prepared, the two photographs were in
advertently switched. However a correction was published
immediately. Respondent sued petitioners in the Court of
First Instance of Manila for the recovery of damages alleging
the defamatory character of the above publication of his
picture. Defense interposed that they are beating the
deadline. The court ruled in his favor. Hence the appeal.

Issue:
Whether or Not petitioners abused the freedom of the press.

Held:
No. The SC, quoting Quisumbing v. Lopez, found for plaintiff,
but with reduced damages, since the error in this case could
have been checked considering that this was a weekly
magazine and not a daily. The ruling: "there is no evidence in
the record to prove that the publication of the news item
under consideration was prompted by personal ill will or
spite, or that there was intention to do harm,' and that on the
other hand there was 'an honest and high sense of duty to
serve the best interests of the public, without self-seeking
motive and with malice towards none. 'Every citizen of course
has the right to enjoy a good name and reputation, but we do
not consider that the respondents, under the circumstances
of this case, had violated said right or abused the freedom of
the press. The newspapers should be given such leeway and
tolerance as to enable them to courageously and effectively
perform their important role in our democracy. In the
preparation of stories, press reporters and editors usually
have to race with their deadlines; and consistently with good
faith and reasonable care, they should not be held to
account, to a point of suppression, for honest mistakes or
imperfection in the choice of words.―No inroads on press
freedom should be allowed in the guise of punitive action
visited on what otherwise could be characterized as libel
whether in the form of printed words or a defamatory
imputation resulting from the publication of respondent's
picture with the offensive caption as in the case here
complained of. This is merely to underscore the primacy that
freedom of the press
enjoys.‖
#92 New York Times Co. v. Sullivan
Brief Fact Summary. The Plaintiff, Sullivan (Plaintiff) sued the
Defendant, the New York Times Co. (Defendant), for printing
an advertisement about the civil rights movement in the
south that defamed the Plaintiff.
Synopsis of Rule of Law. The constitutional guarantees
require a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was
made with actual malice – that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.
Facts. The Plaintiff was one of three Commissioners of
Montgomery, Alabama, who claimed that he was defamed in
a full-page ad taken out in the New York Times. The
advertisement was entitled, ―Heed Their Rising Voices‖ and it
charged in part that an unprecedented wave of terror had
been directed against those who participated in the civil
rights movement in the South. Some of the particulars of the
advertisement were false. Although the advertisement did not
mention the Plaintiff by name, he claimed that it referred to
him indirectly because he had oversight responsibility of the
police. The Defendant claimed that it authorized publication
of the advertisement because it did not have any reason to
believe that its contents were false. There was no independent
effort to check its accuracy. The Plaintiff demanded that the
Defendant retract the advertisement. The Defendant was
puzzled as to why the Plaintiff thought the advertisement
reflected adversely on him. The jury found the ad libe
lous per se and actionable without proof of malice. The jury
awarded the Plaintiff $500,000 in damages. The Alabama
Supreme Court affirmed. The Defendant appealed.
Issue. Is the Defendant liable for defamation for printing an
advertisement, which criticized a public official‘s official
conduct?
Held. No. Reversed and remanded.
* Safeguards for freedom of speech and of the press are
required by the First and Fourteenth Amendments of the
United States Constitution (Constitution) in a libel action
brought by a public official against critics of his official
conduct.
* Under Alabama law, a publication is libelous per se if the
words tend to injure a person in his reputation or to bring
him into public contempt. The jury must find that the words
were published of and concerning the plaintiff. Once libel per
se has been established, the defendant has no defense as to
stated facts unless he can persuade the jury that they were
true in all their particulars.
* Erroneous statement is inevitable in free debate and it must
be protected if the freedoms of expression are to have the
breathing space that the need to survive.
* The constitutional guarantees require a federal rule that
prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice – that
is, with knowledge that it was false or with reckless disregard
of whether it was false or not.
* The Supreme Court of the United States (Supreme Court)
holds that the Constitution delimits a State‘s power to award
damages for libel in actions brought by public officials
against critics of their official conduct. In this case, the rule
requiring proof of actual malice is applicable.
* The Defendant‘s failure to retract the advertisement upon
the Plaintiff‘s demand is not adequate evidence of malice for
constitutional purposes. Likewise, it is not adequate evidence
of malice that the Defendant failed to check the
advertisements accuracy against the news stories in the
Defendant‘s own files. Also, the evidence was constitutionally
defective in another respect: it was incapable of supporting
the jury‘s finding that the allegedly libelous statements were
made of and concerning the Plaintiff.

Concurrence. Justice Hugo Black (J. Black) argued that the
First and Fourteenth Amendments of the Constitution do not
merely ―delimit‖ a State‘s power to award damages, but
completely prohibit a State from exercising such a power. The
Defendant had an absolute, unconditional right to publish
criticisms of the Montgomery agencies and officials.
Discussion. In order for a public official to recover in a
defamation action involving his official conduct, malice must
be proved. Without the showing of malice, the Supreme Court
felt that a defamation action in this case would severely
cripple the safeguards of freedom speech and expression that
are guaranteed in the First Amendment of the Constitution
and applicable to the States via the Fourteenth Amendment
of the Constitution.
#93 Rosenbloom v Metro Media, Inc.
Facts:
In 1963, petitioner was a distributor of nudist magazines in
the Philadelphia metropolitan area. Respondent
Metromedia‘radio station, which broadcast news reports
every half hour, broadcast news stories of petitioner
Rosenbloom‘s arrest for possession of obscene literature and
the police seizure of "obscene books," and stories concerning
petitioner's lawsuit against certain officials alleging that the
magazines he distributed were not obscene and seeking
injunctive relief from police interference with his business.
These latter stories did not mention petitioner Rosenbloom‘s
name, but used the terms "smut literature racket" and "girlie-
book peddlers." Following petitioner's acquittal of criminal
obscenity charges, he filed this action seeking damages under
Pennsylvania's libel law.
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
Held:
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.
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.
#94 Ayer Production v Judge Capulong
Facts:
Petitioner McElroy an Australian film maker, and his movie
production company, Ayer Productions, envisioned, sometime
in 1987, for commercial viewing and for Philippine and
international release, the historic peaceful struggle of the
Filipinos at EDSA. The proposed motion picture entitled "The
Four Day Revolution" was endorsed by the MTRCB as and
other government agencies consulted. Ramos also signified
his approval of the intended film production.

It is designed to be viewed in a six-hour mini-series television
play, presented in a "docu-drama"style, creating four fictional
characters interwoven with real events, and utilizing actual
documentary footage as background. David Williamson is
Australia's leading playwright and Professor McCoy
(University of New South Wales) is an American historian
have developed a script. Enrile declared that he will not
approve 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.
Petitioners acceded to this demand and the name of Enrile
was deleted from the movie script, and petitioners proceeded
to film the projected motion picture. However, a complaint
was filed by Enrile invoking his right to privacy. RTC ordered
for the desistance of the movie production and making of any
reference to plaintiff or his family and from creating any
fictitious character in lieu of plaintiff which nevertheless is
based on, or bears substantial or marked resemblance to
Enrile. Hence the appeal.
Issue:
Whether or Not freedom of expression was violated.
Held:
Yes. Freedom of speech and of expression includes the
freedom to film and produce motion pictures and exhibit
such motion pictures in theaters or to diffuse them through
television. 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 projected motion
picture was as yet uncompleted and hence not exhibited to
any audience. Neither private respondent nor the respondent
trial Judge knew what the completed film would precisely
look like. There was, in other words, no "clear and present
danger" of any violation of any right to privacy. Subject
matter is one of public interest and concern. The subject thus
relates o a highly critical stage in the history of the country.
At all relevant times, during which the momentous events,
clearly of public concern, that petitioners propose to film were
taking place, Enrile was a "public figure:" Such public figures
were held to have lost, to some extent at least, their right to
privacy. 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.
#95 Soliven vs. Judge Makasiar, Beltran
Facts:
In these consolidated cases, three principal issues were
raised: (1) whether or not petitioners were denied due process
when information for libel were filed against them although
the finding of the existence of a prima facie case was still
under review by the Secretary of Justice and, subsequently,
by the President; and (2) whether or not the constitutional
rights of Beltran were violated when respondent RTC judge
issued a warrant for his arrest without personally examining
the complainant and the witnesses, if any, to determine
probable cause. Subsequent events have rendered the first
issue moot and academic. On March 30, 1988, the Secretary
of Justice denied petitioners' motion for reconsideration and
upheld the resolution of the Undersecretary of Justice
sustaining the City Fiscal's finding of a prima facie case
against petitioners. A second motion for reconsideration filed
by petitioner Beltran was denied by the Secretary of Justice
on April 7, 1988.On appeal, the President, through the
Executive Secretary, affirmed the resolution of the Secretary
of Justice on May 2, 1988. The motion for reconsideration
was denied by the Executive Secretary on May 16, 1988. With
these developments, petitioners' contention that they have
been denied the administrative remedies available under the
law has lost factual support.
Issue:
Whether or Not petitioners were denied due process when
information or libel were filed against them although the
finding of the existence of a prima facie case was still under
review by the Secretary of Justice and, subsequently, by the
President. Whether or Not the constitutional rights of Beltran
were violated when respondent RTC judge issued a warrant
for his arrest without personally examining the complainant
and the witnesses, if any, to determine probable cause
Held:

With respect to petitioner Beltran, the allegation of denial of
due process of law in the preliminary investigation is negated
by the fact that instead of submitting his counter- affidavits,
he filed a "Motion to Declare Proceedings Closed," in effect
waiving his right to refute the complaint by filing counter-
affidavits. Due process of law does not require that the
respondent in a criminal case actually file his counter-
affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be
given the opportunity to submit counter-affidavits if he is so
minded.
The second issue, raised by petitioner Beltran, calls for an
interpretation of the constitutional provision on the issuance
of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
The addition of the word "personally" after the word
"determined" and the deletion of the grant of authority by the
1973 Constitution to issue warrants to "other responsible
officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now
requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for
the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of
arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established
doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal
regarding the existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or(2) if on the basis thereof
he finds no probable cause, he may disregard the fiscal's
report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the
existence of probable cause.
Sound policy dictates this procedure, otherwise judges would
be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts. It has
not been shown that respondent judge has deviated from the
prescribed procedure. Thus, with regard to the issuance of
the warrants of arrest, a finding of grave abuse of discretion
amounting to lack or excess of jurisdiction cannot be
sustained. The petitions fail to establish that public
respondents, through their separate acts, gravely abused
their discretion as to amount to lack of jurisdiction. Hence,
the writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion
amounting to excess or lack of jurisdiction onthe part of the
public respondents, the Court Resolved to DISMISS the
petitions in G. R. Nos.82585, 82827 and 83979. The Order to
maintain the status quo contained in the Resolution of the
Court en banc dated April 7, 1988 and reiterated in the
Resolution dated April 26, 1988 is LIFTED.
―Fighting Words‖, Offensive Words
#96 Chaplinsky v. New Hampshire
Brief Fact Summary. Chaplinsky was convicted under a State
statute for calling a City Marshal a ―God damned racketeer‖
and a ―damned fascist‖ in a public place.

Synopsis of Rule of Law. ―Fighting words‖ are not entitled to
protection under the First Amendment of the United States
Constitution (Constitution)
Facts
Chaplinsky, a Jehovah's Witness, made several statements
denouncing organized religion while distributing religious
literature on a public street. Several citizens complained to
the city marshal that Chaplinsky's message was offensive.
The marshal informed the citizens that Chaplinsky was
lawfully engaged but warned Chaplinsky that the crowd was
getting restless. A disturbance subsequently occurred, and
an officer on duty proceeded to escort Chaplinsky, without
placing him under arrest, to the police station. En route, they
encountered the city marshal, whereupon Chaplinsky
proclaimed, "You are a God damned racketeer" and "a
damned fascist." For these words, Chaplinsky was convicted
of violating a New Hampshire statute prohibiting the use of
offensive or annoying words when addressing another person
in public. Claiming that the statute placed an unreasonable
restraint on free speech, Chaplinsky appealed his conviction.
Issue
Whether or not the statute or the application of the statute to
Chaplinsky‘s comments violate his free speech rights under
the First Amendment of the Constitution.
Held No. The lower court is affirmed. Considering the purpose
of the First Amendment of the Constitution, it is obvious that
the right to free speech is not absolute under all
circumstances. There are some narrowly defined classes of
speech that have never been protected by the First
Amendment of the Constitution. These include ―fighting
words,‖ words that inflict injury or tend to excite an
immediate breach of the peace. Such words are of such little
expositional or social value that any benefit they might
produce is far outweighed by their costs on social interests in
order and morality.
The statute at issue is narrowly drawn to define and punish
specific conduct lying within the domain of government
power. Moreover, the Supreme Court of New Hampshire,
which is the ultimate arbiter of the meanings of New
Hampshire law, has defined the Statute as applying only to
―fighting words‖. Therefore, the Statute does not
unconstitutionally impinge upon the right of free speech.
Discussion. By holding that ―fighting words‖ are not protected
forms of speech the Supreme Court of the United States
(Supreme Court) announced a rare form of content based
restriction on speech that is permissible. The student should
consider what characteristics distinguish a ―fight word‖ from
a bona fide criticism. One difference may lie in the speaker‘s
intent. ―Fighting words‖ are intended to inflict harm, bona-
fide criticisms are intended to communicate ideas. Another
difference may lie in the differing likely effects of each:
―fighting words‖ are likely to provoke the average person to
violence while bona fide criticisms are not.
#97 Cohen v California
Facts: The Defendant was convicted under a California law
for wearing a jacket that had on it, ―F— the draft‖ outside the
municipal courthouse during the Vietnam War. The
Defendant did not threaten or engage in any act of violence.
The state court affirmed his conviction holding that ―offensive
conduct‖ means ―behavior which has a tendency to provoke
others to acts of violence or to in turn disturb the peace.‖
Issue: Whether California can excise, as ―offensive conduct,‖
one particular scurrilous epithet from the public discourse,
either upon the theory of the court below that its use is
inherently likely to cause violent reactions or upon a more
general assertion that the states, acting as guardians of the
public morality, may properly remove this offensive word from
the public vocabulary?
Held: No. Judgment of the lower courts reversed. Defendant‘s
speech is protected by the First Amendment of the United
States Constitution (Constitution). The only conviction that
the state sought to punish was communication. Thus, this
case rests solely upon ―speech.‖ The state lacks power to
punish Defendant for the content of his message because he
showed no intent to incite disobedience to the draft. Thus, his
conviction rests upon his exercise of the ―freedom of speech‖
and can only be justified as a valid regulation of the manner
in which he exercised that freedom. This is not an obscenity
case because his message is not erotic. This case does not
involve ―fighting words‖ because his message is not directed
at another person. Further, the public is free to avert their
eyes from the distasteful message. His message constitutes
emotive speech because it seeks to get our attention. This
speech is protected by the First Amendment of the
Constitution. Therefore, his conviction must be overturned.
Obscenity
#98 Roth vs California
Facts.The Defendant, Mr. Roth was convicted of mailing
obscene advertising and an obscene book in violation of a
federal statute barring the mailing of ―obscenity.‖ He was
convicted under a California law for ―lewdly keeping for sale
obscene and indecent books‖ and ―publishing an obscene
advertisement of them.‖
Issue: Whether obscenity is utterance within the area of
protected speech and press?
Holding. No. Judgment of the lower court affirmed. In light of
history, it is apparent that the phrasing of the First
Amendment of the Constitution was not intended to protect
every utterance. Implicit in the history of the First
Amendment of the Constitution is the rejection of obscenity
as utterly without redeeming social importance. Sex and
obscenity are not synonymous. Obscenity is not within the
area of protected speech and press. The test for obscene
material is whether the average person, applying
contemporary community standards, the dominant theme of
the material taken as a whole appeals to the prurient
interest. This test provides safeguards adequate to withstand
the constitutional infirmity. Obscenity is not within the area
of protected speech and press. Therefore obscenity is
unprotected speech.
#99 Miller v. California
Brief Fact Summary. The Defendant, Miller‘s (Defendant)
conviction for mailing advertisements for ―adult‖ books to
unwilling recipients was vacated and remanded in an effort to
shift the burden of obscenity determinations to the state and
local courts.
Synopsis of Rule of Law. In determining whether speech is
obscene, the basic guidelines for the trier of fact must be: (a)
whether ―the average person, applying contemporary
community standards‖ would find the material, taken as a
whole, appeals to the prurient interest of sex, (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 literacy,
artistic, political, or scientific value.
Facts. The Defendant was convicted under the California
Penal Code for mailing advertisements for ―adult‖ material to
non-soliciting recipients.
Issue. Whether state statutes may regulate obscene material
without limits?
Held. No. Judgment of the lower court vacated and remanded
for further proceedings. In determining whether speech is
obscene, the basic guidelines for the trier of fact must be: (a)
whether ―the average person, applying contemporary
community standards‖ would find the material, taken as a
whole, appeals to the prurient interest of sex, (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 literacy,
artistic, political, or scientific value. The Supreme Court of
the Untied States (Supreme Court) does not adopt as a
constitutional standard the ―utterly without redeeming social
value‖ test. If a state law that regulates obscene material is
thus limited, as written or construed, First Amendment
constitutional values are adequately protected by the ultimate
power of appellate courts to conduct an independent review
of constitutional claims when necessary.
Dissent. To send men to jail for violating standards that they
cannot understand due to vagueness, denies them of due
process.
The statute in question is overbroad and thus,
unconstitutional.
Discussion. This case attempts a new definition and
clarification of obscenity while also trying to shift the burden
of obscenity determinations to the state and local courts.
#100 Jose Antonio U. Gonzalez In Behalf Of Malaya Films,
Lino Brocka, Jose F. Lacaba, And Dulce Q. Saguisag,
Petitioners, vs.
Chairman Maria KalawKatigbak, General Wilfredo C.
Estrada (Ret.), And The Board Of Review For Motion
Pictures And Television (Brmpt), Respondents.
Facts:
The principal petitioner is Jose Antonio U. Gonzalez,
President of the Malaya Films. The respondent is the Board of
Review for Motion Pictures and Television (BRMPT), with
Maria KalawKatigbak as its Chairman and Brig. Gen.
Wilfredo C. Estrada as its Vice-Chairman, also named
respondents. On October 23, 1984, a permit to exhibit the
film KapitsaPatalim under the classification "For Adults Only"
with certain changes and deletions enumerated was granted
by a sub-committee of the BRMPT.
Motion for reconsideration was filed by petitioners stating
that the classification of the film "For Adults Only" was
without basis. For petitioners, such classification is without
legal and factual basis and is exercised as impermissible
restraint of artistic expression. The film is an integral whole
and all its portions, including those to which the Board now
offers belated objection, are essential for the integrity of the
film. Viewed as a whole, there is no basis even for the vague
speculations advanced by the Board as basis for its
classification. The respondents in their answer submitted
that the standard of the law (Executive Order 878) for
classifying films afford a practical and determinative
yardstick for the exercise of judgment. For them, the question
of the sufficiency of the standards remains the only question
at issue.
Issue:
Whether the Board of Review for Motion Pictures and
Television have the power to classify the movie
―KapitsaPatalim‖ under the classification ―For Adults Only‖
and impose conditions to edit the material to allow it a
―General patronage‖ rating.

Held:
YES. Petition dismissed. Motion pictures are important both
as a medium for the communication of ideas and the
expression of the artistic impulse. Their effects on the
perception by our people of issues and public officials or
public figures as well as the prevailing cultural traits are
considerable. The "importance of motion pictures as an organ
of public opinion lessened by the fact that they are designed
to entertain as well as to inform." There is no clear dividing
line between what involves knowledge and what affords
pleasure. If such a distinction were sustained, there is a
diminution of the basic right to free expression. Press
freedom "may be identified with the liberty to discuss publicly
and truthfully any matter of public concern without
censorship or punishment.
This is not to say that such freedom, as is the freedom of
speech, absolute. It can be limited if there be a clear and
present danger of a substantive evil that [the State] has a
right to prevent. Censorship or previous restraint certainly is
not all there is to free speech or free press. If it were so, then
such basic rights are emasculated. It is, however, except in
exceptional circumstances a sine qua non for the meaningful
exercise of such right. This is not to deny that equally basic is
the other important aspect of freedom from liability. To avoid
an unconstitutional taint on its creation, the power of the
Board is limited to the classification of films.
It can, to safeguard other constitutional objections, determine
what motion pictures are for general patronage and what may
require either parental guidance or be limited to adults only.
That is to abide by the principle that freedom of expression is
the rule and restrictions the exemption. The power to exercise
prior restraint is not to be presumed; rather the presumption
is against its validity. The test, to repeat, to determine
whether freedom of expression may be limited is the clear and
present danger of an evil of a substantive character that the
State has a right to prevent. Such danger must not only be
clear but also present. There should be no doubt that what is
feared may be traced to the expression complained of. The
causal connection must be evident.
Also, there must be reasonable apprehension about its
imminence. The time element cannot be ignored. Nor does it
suffice if such danger be only probable. There is the
requirement of its being well-nigh inevitable. The basic
postulate, therefore, is that where the movies, theatrical
productions, radio scripts, television programs, and other
such media of expression are concerned — included as they
are in freedom of expression — censorship, especially so if an
entire production is banned, is allowable only under the
clearest proof of a clear and present danger of a substantive
evil to public safety, public morals, public health or any other
legitimate public interest. There is merit to the observation of
Justice Douglas that "every writer, actor, or producer, no
matter what medium of expression he may use, should be
freed from the censor." The law, however, frowns on
obscenity. All ideas having even the slightest redeeming social
importance - unorthodox ideas, controversial ideas, even
ideas hateful to the prevailing climate of opinion - have the
full protection of the guaranties, unless excludable because
they encroach upon the limited area of more important
interests. But implicit in the history of the First Amendment
is the rejection of obscenity as utterly without redeeming
social importance. There was an abuse of discretion by the
Board in the light of the difficulty and travail undergone by
Gonzales, et. al. before ―KapitsaPatalim‖ was classified as
"For Adults Only," without any deletion or cut. Moreover the
Board‘s perception of what constitutes obscenity appears to
be unduly restrictive. The Court concludes thus that there
was an abuse of discretion. Nonetheless, there are not
enough votes to maintain that such an abuse can be
considered grave. Accordingly, certiorari does not lie.
#101 Pita vs CA
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. 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 said defendants and their agents
from confiscating plaintiff‗s magazines or from 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. Plaintiff also 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. The Court granted the temporary restraining
order. The case was set for trial upon the lapse of the TRO.
RTC ruled that the seizure was valid. This was affirmed by
the CA.
Issue:
Whether or Not the seizure violative of the freedom of
expression of the petitioner.
Held:
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. However, It is easier said than done to say, 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. Using the Kottinger
rule: the test of obscenity is "whether the tendency of the
matter charged as obscene, is to deprave or corrupt those
whose minds are open to such immoral influences and into
whose hands a publication or other article charged as being
obscene may fall." Another is whether it shocks the ordinary
and common sense of men as an indecency. Ultimately
"whether a picture is obscene or indecent must depend upon
the circumstances of the case and that the question is to be
decided by the "judgment of the aggregate sense of the
community reached by it." The government authorities in the
instant case have not shown the required proof to justify a
ban and to warrant confiscation of the literature 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 provides that the authorities must apply
for the issuance of a search warrant from a judge, if in their
opinion an obscenity seizure is in order and that;1. 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;2. 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 the judge‗s sound discretion;

―Defamation and Discrimination‖ in C. MacKinnon, Only
Words
#102 Reno v. American Civil Liberties Union
Citation. 521 U.S. 844,117 S. Ct. 2329,138 L. Ed. 2d
874,1997 U.S.
Brief Fact Summary. Two provisions of the Communications
Decency Act of 1996 (CDA) that criminalized providing
obscene materials to minors by on the internet were held
unconstitutional by the Supreme Court of the United States
(Supreme Court).
Synopsis of Rule of Law. Where a content-based blanket
restriction on speech is overly broad by prohibiting protected
speech as well as unprotected speech, such restriction is
unconstitutional.
Facts. At issue is the constitutionality of two statutory
provisions enacted to protect minors from ―indecent‖ and
―patently offensive‖ communications on the Internet. The
District Court made extensive findings of fact about the
Internet and the CDA. It held that the statute abridges the
―freedom of speech‖ protected by the First Amendment of the
United States Constitution (Constitution).
Issue. Whether the two CDA statutory provisions at issue are
constitutional?
Held. No. Judgment of the District Court affirmed. Under the
CDA, neither parents‘ consent nor their participation would
avoid application of the statute. The CDA fails to provide any
definition of ―indecent‖ and omits any requirement that the
―patently offensive material‖ lack serious literary, artistic,
political or scientific value. Further, 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. CDA
applies to the entire universe of the cyberspace. Thus, the
CDA is a content-based blanket restriction on speech, as
such, cannot be properly analyzed as a form of time, place
and manner restriction. The CDA lacks the precision that the
First Amendment of the Constitution requires when a statute
regulates the content of speech. In order to deny minors
access to potentially harmful speech, the statute suppresses
a large amount of speech that adults have a constitutional
right to receive. The CDA places an unacceptable burden on
protected speech, thus, the statute is invalid as
unconstitutional.
Concurrence. The constitutionality of the CDA as a zoning
law hinges on the extent to which it substantially interferes
with the First Amendment rights of adults. Because the
rights of adults are infringed only by the ―display‖ provision
and by the ―indecency transmission‖ provision, the judge
would invalidate the CDA only to that extent.
Discussion. This case brings the First Amendment of the
Constitution into the Internet age while prohibiting speech
regulations that are overbroad despite their seemingly
benevolent goals.
#103 John D. Ashcroft v. American Civil Liberties Union
Brief Fact Summary. Internet content providers and civil
liberties groups sued United States Attorney General,
claiming that Child Online Protection Act (COPA) violated
their First Amendment rights. They are seeking preliminary
injunction of enforcement.

Synopsis of Rule of Law. When there is a challenge on a
content-based speech restriction under First Amendment, the
burden of proof is on the government to prove that proposed
alternatives will not be as effective as challenged statute.
Facts. Congress passed the Child Online Protection Act
(COPA) to avert minors from having access to pornography on
the internet. The American Civil Liberties Union (ACLU) and
online publishers sued in federal court to prevent
enforcement of the act, arguing that it violated the Free
Speech clause of the First Amendment. The District Court
agreed. On appeal, a Third Circuit Court of Appeals panel
affirmed, the Court held that because the act used
"community standards" to determine which material was
harmful to minors, it would bar material that was offensive in
the most "puritanical" communities from being displayed in
more "tolerant" ones.
Issue. Whether the Child Online Protection Act's
requirements violate the First Amendment by restricting
speech and also violates the First Amendment by using a
method that is not least restrictive?
Held: Yes. The Court held that Internet content providers
and civil liberties groups were likely to prevail on the claim
that COPA violated First Amendment by burdening adults‘
access to some protected speech. Affirmed and remanded.
Justice Anthony Kennedy, in the majority opinion, wrote that
the district court's injunction "was not an abuse of discretion,
because on this record there are a number of plausible, less
restrictive alternatives to the statute." The majority also
emphasized that barring the statute's enforcement during the
trial would be less harmful than allowing it, because allowing
it would be likely to prevent online publishers from
publishing certain material. The Supreme Court ruled that
the "community standards" provision alone did not make the
act unconstitutional and sent the case back to the Third
Circuit. Upon revision, the Third Circuit again prohibited
implementation of the act, holding that it was likely to fail the
"strict scrutiny" test due to the fact that it was not narrowly
tailored – that is, it prevented online publishers from
publishing some material that adults had a right to access –
and because it did not use the least restrictive means
possible to protect children (the court found that blocking
software installed on home computers by parents would do as
good a job without preventing free speech). For similar
reasons, the panel found that the act was unconstitutionally
"overbroad" – that is, it applied to too much protected
material.
Discussion. When determining whether alternatives would be
as effective as a content-based speech restriction, the court
first assumes that the certain speech may be regulated and
then proceeds to consider what the least restrictive approach
is.