Article III, Sec 4
Article III, Sec 4
Article III, Sec 4
*This lecture material is for the exclusively use of the students of Prof.
Reynaldo G. Lopez in Constitutional Law who are under a Modified
Enhanced Community Quarantine (MECQ) #covid 19. Any
unauthorized copy, publication, sale, redistribution or reproduction of
this work constitutes a violation and infringement of his rights under
the Intellectual Property Code and other existing copyright laws.
* Article III, Section 4, Constitution: “No law shall be passed impairing the freedom
of speech, of expression and of the press, and the right of the people to peaceably
assemble and petition the government for redress of grievances.”
CONCEPT
Freedom of expression is an alienable human right that flows from the very
nature of man. It must be nurtured and protected by the State for the full and
proper growth of the individual and the nation. (Schmandt and Steinbecker, pp.
163-164).
PURPOSE
It is only free debate and free exchange of ideas that a government remains
responsive to the will of the people and peaceful change is effected. (De Jorge vs.
Oregon, 299 US 353, 1937).
The press, as the Fourth Estate, scrutinizes the acts and conduct of public
officials and the plans and policies of government, holding the government
accountable to the people. If we preserve this right, public opinion must be
enlightened, political vigilance must be encouraged. (Tanada and Fernando, citing
Story, p. 313).
SCOPE: PROTECTED SPEECH
“Press” covers every sort of publications like print, broadcast, live shows,
optical media, video, and the internet. The term “Fourth Estate’ refers to the press
and news media both in explicit capacity of advocacy and implicit ability to frame
political issues.
The Three Estates used to refer to the Clergy (First Estate), the Nobility
(Second Estate), and the Commoners (Third Estate). Later, they refer to the
Monarchy (First Estate), the Nobles (Second Estate), and the Peasants and
Bourgeoisie (Third Estate). In some systems of government, they refer to the three
branches of government, namely Legislative, Executive and Judicial Branches. The
Press, though it is not formally recognized as part of the political system, it wields
significant indirect social influence, thus, it is considered as the Fourth Estate.
Wikipedia even adds a Fifth Estate, i.e., a socio-cultural reference to groupings of
outlier viewpoints in contemporary society, and is most associated with bloggers or
journalists, publishing in non-mainstream media outlets, and the social media or
social license. (Wikipedia)
2. Market Place of Ideas. (Justice Holmes) – “The absolute good is better reached by
free trade in ideas,” that the best of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground upon
which their wishes safely can be carried out. Exposure to other ideas allows one to
“consider, test and develop their own conclusions.
4. Expression as marker for group identity. Free speech must be protected as the
vehicle to find those who have similar and shared values and ideals, to join together
and forward common goals.
CHILLING EFFECT
There are two things which the Constitution for being violative of the
freedom of speech and expression:
CASE: Babst vs. National Intelligence Board (NIB), (GR L-62992, 28 Sep
1984)
Petitioners are journalists who received from General Estrada, NIB
Chairman, and summoning to appear before the NIB at Fort Bonifacio to shed light
on confidential matters. Petitioners claim that these amount to censorship.
Respondent responds that those letters are mere invitations and that the
proceedings have been terminated, thus, the case has become moot and academic.
Held: The SC dismissed the petition on the basis of mootness but has this to
say:
Ordinarily, an invitation to attend a hearing and answer some questions,
which the person may heed or refuse at her pleasure, is not illegal or constitutionally
objectionable. Under certain circumstances, however, such an invitation can easily
assume a different appearance. Thus, where the invitation comes from a powerful
military group when the country has just emerged from martial rule and when the
privilege of the writ of habeas corpus has not entirely been lifted and the designated
interrogation site is a military camp, the same can easily be taken, not as a strictly
voluntary invitation which it purports to be, but as an authoritative command
which one can only defy at his peril, especially when the letter contains the ominous
seeming that “failure to appear…shall be considered as a waiver…and this
Committee will be constrained to proceed in accordance with law.”
1. Clear and present danger – if there is a clear and present danger of a substantive
evil which the State has to prevent or prohibit. It is a question of degree and
proximity. (Schenck vs. US, 248 US 47, 1919)
3. Balancing of interest test – a subjective test with which a court weighs competing
interest like between a person’s liberty interest and the government’s interest in
public safety; or between a person’s right (privacy) and another person’s right
(freedom of expression).
4. Imminent Lawless Action Test – US SC held that the government cannot punish
inflammatory speech unless that speech is “directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.”
(Brandenburg vs. Ohio, 395 US 444, 1969).
Under the Counterspeech Doctrine, bad speech can be countered with good
speech; negative speech with positive speech, and government should counter false
speech with truthful speech as opposed to engaging in raw censorship nd stark
suppression. “If there be a time to expose through discussion the falsehood and
fallacies, to avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence.” (J. Brandeis concurring in Whitney vs.
California, 274 US 357, 1927).
REGULATIONS
Under the O’Brien Test (US vs. O’Brien, 391 US 367, 1968), government
regulation is valid if:
Facial challenge – a challenge to a statute in which the plaintiff alleges that the
legislation is always unconstitutional for being unreasonable. In facial challenge, the
statute need not have a direct effect on the plaintiff. The court lowers down the
requirement of locus standi because the law creates a chilling effect which is of
transcendental importance.
Applied challenge – a challenge to a statute in which the plaintiff which alleges that
a particular application of a statute, if applied to him, is unconstitutional. In applied
challenge, the statute must have a direct effect on the plaintiff to establish locus
standi.
1. Print Media
Students rally for equal rights. NY Times published the story that the police
padlocked the school canteen from “Negroes”. Sullivan claims that since he is the
City Commissioner of Montgomery, Alabama, he was the one being referred to in
the article which is in the form of paid ads. He asks for punitive damages for libel.
Whatever is added to the field of libel is taken from the field of free debate. A
rule compelling the critic of official conduct to guarantee the truth of ALL his
FACTUAL ASSERTIONS and do so on the pain of libel judgments virtually, in
amount, leads to a compelling self-censorship. This will deter would-be critics of
official conduct from voicing their criticism, eventhough it is believed to be true and
eventhough it is in fact true, out of fear. That is CENSORSHIP.
Accused was charged with obscenity for having exhibited in a recreation area
a film which was offensive to morals. He was sentenced to six months imprisonment
and a P300 fine. The accused did not deny his guilt but he claimed that under the
surrounding circumstances, the penalty of imprisonment shall be eliminated
because there was only a slight degree of obscenity as noted by the court. His
counsel pointed to some jurisprudence that nude paintings, pictures and sculptures
are not offensive because they are presented for the sake of art.
Police raided Camera Supply Company for sale of indecent and obscene
pictures (post cards) of natives labeled as “Philippines, Bontoc Women,” “Ifugao
Girl,” and “Kalinga Girls”.
Kottinger Test:
1. The burden of proving that the film is unprotected expression must rest on the
censor.
2. The requirement cannot be administered in a manner which would lend an effect
on finality to the censor’s determination. (Right to appeal in judicial courts).
Related Law:
CASE: MTRCB vs. ABS CBN and Loren Legarda (GR 155282, 17 Jan 2005)
Held: There was abuse of discretion. Beauty lies in the eyes of the beholder.
SC cited Roth vs. US, (354 US 476, 1957), a landmark case before the US SC which
redefined the constitutional test for determining what constitutes “obscene
material” unprotected by the First Amendment. Justice Brennan speaking for the
Court wrote:
The US SC rejected and rendered obsolete the Hicklin Test laid down in the
British case, Regina vs. Hicklin in 1868. Under the Hicklin test, the test for obscenity
is “whether the tendency of the matter is to deprave and corrupt those whose minds
are open to such immoral influences and into whose hands a publication of this sort
may fall”, regardless of its artistic or literary merit. The US SC ruled that the
Hicklin Test was inappropriate. Under the Roth Test, the test for obscenity is
“whether to the AVERAGE PERSON, APPLYING CONTEMPORARY
COMMUNITY STANDARDS, THE DOMINANT THEME of the material taken as
a whole appeals to prurient interest.
However, for failure to get the necessary votes to rule that the abuse of
discretion was grave, the SC dismissed the petition. However, certain principles
were enunciated:
2. Citing Burstyn vs. Wilson, (343 US 495, 1952), ‘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 distinction were sustained, there is no
diminution of the basic right to free expression.’
4. Radio
Held: The radio station is not liable because the radio station itself had done
nothing illegal to obtain the recorded tape. This means that media defendants are
not liable if a third party violated the law. Obiter: “One of the costs associated with
participation in public office is an attendant loss of privacy.”
Held: All forms of media, whether print or broadcast, are entitled to the
broad protection of freedom of speech and expression clause. The test for limitation
is clear and present danger.
Broadcast stations deserve the special protection given to all forms of media
by the due process and freedom of expression clauses of the Constitution.
Related Laws:
* RA 9239, Optical Media Act of 2003, creating the Video Regulatory Board (VRB)
*RA 10175, Cybercrime Prevention Act of 2012
Held:
a. Section 5 (a) of RA 10175 is valid with respect to the crime of “aiding and
abetting” in the commission of cybercrimes on the following offenses; Illegal
Interception, Data Interference, System Interference, Misuse of Devices, Cyber-
squatting, Computer related forgery, Computer related fraud, Computer-related
identity theft, and cybersex. None of these offenses borders on the exercise of
freedom of expression. The person aiding and abetting in these cybercrimes can be
identified with adroit tracking of their works.
KINDS OF SPEECHES
CASE: Diocese of Bacolod vs. Comelec (GR 205728, 21 Jan 2015, Leonen, J.)
But even if the Court treats this as content-neutral regulation, still it will not
pass the intermediate scrutiny test. Under the O’Brien Test, government regulation
is valid if:
Thus, commercial speech is not of the same degree as core speeches. But
commercial speech is still a speech, and in order to validly restrict commercial
speech, the following requisites must be present:
1. Commercial speech must not be false or misleading and should not propose an
illegal transaction (Friedman vs. Rogers, 440 US 1, 1979; Pittsburgh Press Co. vs.
Human Relations Commission, 413 US 376, 1973).
2. However, even truthful and lawful commercial speech may be regulated if:
(Central Hudson Gas and Electric Corp. vs. Public Service Commission of NY, 447
US 557)
a. Government has substantial interest to protect;
b. The regulation directly advances that interest; and
c. The regulation is not more than necessary to protect that interest.
Sections 6-9 of EO 51, Milk Code, authorizes the DOH to control the purpose
of the information and to whom such information may be disseminated to ensure
that the information would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to scientific and
factual matters and shall not create a belief that bottlefeeding is equivalent or
superior to breastfeeding. However, Section 11 of the R&R prohibits the
advertisement and promotion of materials and activities for breastmilk substitutes.
Held: The advertising and promotion of breast milk substitute falls within
the ambit of commercial speech, a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to protection. An absolute ban on
advertising is unduly restrictive and is more than necessary to further the avowed
governmental interest of promoting the health of infants and young children.
“Our liberty depends on the freedom of the press, and that cannot be limited
without being lost.” - Thomas Jefferson
Held: Valid. This is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, theft of identity information must be intended for
an illegitimate purpose. Moreover, acquiring and disseminating information made
public by the user himself cannot be regarded as theft.
PEACEFUL ASSEMBLY AND PETITION FOR REDRESS OF GRIEVANCES
The mayor offered the applicant to hold the rally on a weekday or in the
Sunken Garden, instead of Plaza Miranda. The date applied for falls on a weekday
and a public assembly on that day would cause great disruption in the area.
Note: The ruling in this case has been modified in Reyes vs. Bagatsing, infra.)
Jehovah’s Witness members asked for the use of public plaza. The mayor
instead allowed the use of the northwestern part corner of the plaza but not the use
of the kiosks, which are located near a Catholic Church. The mayor believed that
the kiosks are for official purposes.
Held: There was no refusal to issue the permit. The mayor has discretion to
provide for an alternative venue. The kiosks are located near a Catholic Church,
which the Jehovah’s Witness members had been criticizing in their publications.
The Supreme Court issued guidelines in the issuance of rally permits BP 880
codifies the guidelines set by the Supreme Court in this case.
1. Applicants for a permit to hold an assembly should inform the licensing authority
of the date, the public place where and the time when it will take place. If it were a
public place, only the consent of the owner or the one entitled to its legal possession
is required.
2. The application should be well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the
permit or to its grant but at another public place.
4. If the licensing authority is of the view that there is such an imminent or grave
danger of a substantive evil, the applicants must be heard on the matter.
5. Thereafter, the decision of the licensing authority, whether favorable or adverse,
must be transmitted to the applicants at the earliest opportunity.
6. Thus, if the applicants are so minded, then, they can have recourse to the proper
judicial authority.
Related Laws:
* BP 880, Public Assembly Act of 1985. BP 880 is a codification of the guidelines laid
down by the SC in Reyes vs. Bagatsing.
Held:
3. On G.O. 5 providing a standard by which the AFP and PNP should implement
Proclamation 1017, i.e., “whatever is necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence. This is constitutional.
There is nothing in GO 5 which authorizes the AFP and PNP to commit acts beyond
what is necessary and appropriate to suppress and prevent lawless violence. GO 5
set the limitation in pursuing the President’s order. Otherwise, such acts are illegal.
6. On the dispersal of the rallies of the KMU and other groups. This is
unconstitutional. Public assembly is not a crime. It is guaranteed under Section 4,
Article III of the Constitution. It cannot be limited, much less denied, unless there is
a clear and present danger. Moreover, the authority to regulate assemblies is lodged
with local government units. They can issue or revoke permits after due notice and
hearing on the determination of clear and present danger. Here, petitioners were
not even notified and heard on the revocation of said permits. The first time they
learned of it was at the time of the dispersal. Such is a fatal defect. A democratic
government must be fair, reasonable and according to procedure.
7. On the search and seizure of the Daily Tribune. This is illegal and
unconstitutional. Pursuant to Section 2, Article III of the Constitution, Rule 126 of
the Rules of Court requires that search warrant be served upon probable cause
determined personally by a judge (Sec.4); that search warrant must be served in the
presence of the lawful occupant (Sec. 8); and that the warrant must be served in the
daytime (Sec. 9). All these procedural requirements were lacking. Not only that, it
violates freedom of the press. Such closure is in the nature of prior restraint or
censorship abhorrent to the freedom of the press guaranteed under the fundamental
law.
Petitioners assail BP 880, either in toto or some sections of the law (Sections,
4, 5, 6, 12, 13(a) and 14(a), as well as the policy of Calibrated Preemptive Response
(CPR) issued in a statement of Executive Secretary Ermita. They seek to stop the
violent dispersals of rallies under the “no permit, no rally” policy and the CPR
policy announced by the Ermita.
Held:
In the US, case law regarding the Heckler’s Veto is mixed. Most findings say
that the speaker’s speech cannot be preemptively stopped due to fear of heckling by
the listeners. However, in the immediate face of violence, authorities can ask the
speaker to cease his speech in order to satisfy the hecklers.
In Feiner vs. NY, (340 US 315, 1951), the SC (thru CJ Vinson) held that
public officers acted within their power in arresting a speaker if the arrest was
“motivated solely by a proper concern for the preservation of order and protection
of the general welfare.
But in Hill vs. Colorado, (530 US 703, 2000), the SC (thru Justice Souter)
rejected the Heckler’s Veto and finding the governmental grant of power to hecklers
to be constitutionally problematic in cases when “the regulations allowed a single
private actor (heckler) to unilaterally silence a speaker.” (Note that it was also in
this case that the SC ruled (6-3) that the First Amendment right to free speech was
not violated by a Colorado law limiting protest, education, distribution of literature,
or counseling within 8 feet of a person entering a healthcare facility).
Related Laws
* Article 200. Grave Scandal, RPC. Offending against decency, customs by any
higly scandalous conduct not falling under any article of the revised Penal Code.
Related Laws:
Espuelas had his picture taken, making it appear that he committed suicide
by hanging himself, when in truth and in fact, he was merely standing on a barrel.
He sent copies of the photo to newspapers with a suicide note wherein he made it to
appear that is was written by a fictitious suicide, Alberto Reveniera and addressed
the latter’s supposed wife. The letter explained that he committed suicide because he
did not like and was ashamed of President Roxas’ administration because of the
situation in Central Luzon and Leyte. He asked his supposed wife to inform
President Truman and Churchill that the Philippine government is infested with
Hitlers and Mussolinis and expressed that he had “ no power to put under “juez de
cuchillo”all the Roxas people now in power.”
Held: He was found guilty of seditious libel. The SC, citing US and English
cases held that “writings which tend to overthrow or undermine the security of the
government or to weaken the confidence of the people in the government are against
the public peace, and are criminal not only because they tend to incite a breach of
the peace but because they are conducive to the destruction of the very government
itself. Accused letter suggested the decapitation of Roxas and all of his officials. He
called the government one of crooks and dirty persons infested with Nazis and
Fascists. He conveyed an idea no other than bloody, violent and non-peaceful
methods to free the government from the administration of Roxas and his men.
In 1983, RTC QC Judge, upon application filed by Lt. Col. Castillo issued a
warrant authorizing search and seizure of printed copies of Manila Times. They are
said to be subversive documents which foments distrust and hatred against the
government. Lt. Laguio added that they contain articles inciting to sedition. Upon
serving the warrant, the military closed down the publication,
Related Laws:
* Articles 353-355, RPC, Libel. A public and malicious imputation of a crime, vice
or defect, real or imaginary, or any act, omission, condition, status or circumstances
tending to cause the dishonor, discredit or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.
Elements of Libel:
1. Imputation of a wrong against another person.
2. Publication of the imputation.
3. Person defamed is identifiable by a third person
4. With malice, bad faith (no good faith or good motive)
* Article 354, Privileged Communication. A fair and true report, made in good
faith, without any comments or remarks, of any judicial, legislative or official
proceedings which are not of confidential nature” is an exception to libel.
1. Absolute – it bars any action. Freedom from liability with or without malice.
Example: Speeches of members of Congress made in the exercise of their
official functions.
* Article 363, RPC, Incriminating Innocent Person. Any act constituting perjury
directly incriminates or imputes to an innocent person the commission of a crime.
* Article 364, RPC, Intriguing Against Honor. Any intrigue which has for its
principal purpose to blemish the honor or reputation of a person
Belen, a practicing lawyer, sued his uncle for estafa before the Office of the
City Prosecutor (OCP). After submission of affidavits in the preliminary
investigation, Belen requested Fiscal Lagman for a clarificatory hearing. However,
Fiscal Lagman, without acting on the request, dismissed the case. Aggrieved, Belen
filed an Omnibus Motion for Reconsideration (OMR) and furnished in a sealed
envelope copies of the OMR to his uncle and to the Justice Secretary. Fiscal Lagman
first learned of the existence of the OMR from the son of Belen’ s uncle. Fiscal
Lagman requested the receiving section of the OCP for a copy of the said OMR.
Thereafter, Fiscal Lagman filed a complaint for libel on the basis of the defamatory
allegations in the OMR. Belen was found guilty for libel but argued on appeal that
there was lack of publication on the ground that the defamatory matter was made
known to third person only because prosecution witnesses were staff in the OCP and
were able to read his OMR.
Held: The petitioner is liable for the mistake but not guilty for libel as there
was no bad faith. Erratum was promptly made by the newspaper. A newspaper
should not be made to account to a point of suppression for honest mistakes or
imperfection in the choice of words. 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.
Held: Valid but only insofar as the cybercrime law penalizes the author of
the libelous statement or article. Libel is an unprotected speech, and the government
has a right to protect individuals from defamation. The prosecution has the burden
of proving the presence of actual malice or “malice in fact” in instances where such
element is required to establish guilt. The defense of absence of actual malice, even
when the statement turns out to be false, is available where the offended party is a
public official or a public figure. Since the penal code and implicitly, the cybercrime
law mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of “malice” to convict the author of a defamatory
statement where the offended party is a public figure. But where the offended party
is a private individual, the prosecution need not prove the presence of a malice. The
law explicitly presumes the existence of malice from the defamatory character of the
assailed statement. For his defense, the accused must show that he has a justifiable
reason for the defamatory statement even it was in fact true.
FIGHTING WORDS – these are words which by the very utterance inflict injury or
tend to incite an immediate breach of peace. (Chaplinsky vs.New Hampshire,
315 US 568, 1942)
HATE WORDS – speech that offends, threatens, or insults groups based on race,
color, religion, national origin, sexual orientation, disability of other traits.
In the U.S., the Supreme Court acknowledged the offensive nature of hate
speeches but has been reluctant to impose broad restriction on it. Instead, they
impose “narrowly tailored” limits in speech that is regarded as hateful; and like
fighting words, hate words are those which by their utterances inflict injury or tend
to incite an immediate breach of the peace.
1. Terminiello vs. Chicago, (337 US 1, 1949) (thru Justice Douglas; 5-4 decision,)
A defrocked Catholic priest was sued for his anti-Semitic views which were
regularly published in newspapers and on radio. Held: Freedom of speech is
protected against censorship or punishment. There is no room under the
Constitution for a more restrictive period.
A Ku Klux Klan (KKK) member was sued for recommending the overthrow
of the government. Held: The constitutional guarantee of free speech and of free
press do not permit a State to forbid or prescribe advocacy of the use of force or law
violation except where such advocacy is directed to inciting or producing imminent
lawless action and is likely to incite or produce such action.
3. Nationalist Socialist Party of America (Nazis) vs. Skokie, (432 US 43, 1977)
The government tried to stop the Nazi march in court, citing Skokie City ban
on wearing Nazi uniforms and displaying swastikas. Held: The Skokie ban violates
the First Amendment of the Constitution.
Reverend Phelps of the Baptist Church picketed the funeral of Shepard using
slurs against homosexuals. The family of Shepard sued the Church for intentional
affliction of emotional distress. Held: SC upheld the right to picket. Contribution to
public discourse may be negligible.
Again, on cross burning. Held: The State may choose to prohibit only those
forms of intimidation that are most likely to inspire fear of bodily harm.
7. Texas vs. Johnson, ( 491 US 397, 1989)
After a march through the streets, Johnson burned the US flag to protest
President Reagan’s policy. He was convicted of desecration of a venerated object in
violation of a Taxas statue. Held: Johnson’s burning of the flag was expressive
conduct protected by the First Amendment. SC invalidated the state law
prohibitions on desecrating US flag.
OBSCENITY
Related Law:
* Article 201, RPC, Immoral Doctrines, Obscene Publications and Indecent Shows.
1. Hicklin Test / Isolated Passage Test, (Regina vs. Hicklin, 1868 English case; Sir
Alexander James Edmund Cockburn, 10th Baronet)
In a 6-3 decision of the Supreme Court, Justice Brennan wrote for the Court
that “Sex and obscenity are not synonymous.” It repudiated the Hicklin Test stating
that “judging obscenity by the effect of isolated passages upon the most susceptible
persons, might well encompass materials legitimately treating with sex, and so it
must be rejected as unconstitutionally restrictive of the freedoms of speech and
press.”
Here, the SC defined “obscenity” more strictly as:
b. “a material which for its dominant theme has no social redeeming value
but only appeals to the prurient interest.” The test is “whether the work, taken as a
whole lacks serious literary, artistic, political or scientific value (Miller vs.
California (supra.)
Held: The language can be treated as obscene, at least with respect to the
“average child”. Hence, it is, in this context, unprotected speech. The language may
not appeal to the prurient interest of an adult. But the problem with the statement
was that “they were uttered in a TV program that is rated “G” or for general
viewership, and on prime time, or in a time slot that would likely reach even the
eyes and ears of children.”
Executive Order which created the defunct Board of Review for Motion
Pictures and Television (BRMPT) was made as reference in discretion assigned to
the Board “applying contemporary Filipino cultural values” as standard.
In Gonzalez vs. Kalaw Katigbak, (GR L-69500, 22 Jul 1985), the Supreme
Court held that “the widest scope of freedom is to be given to the adventurous and
imaginative exercise of the human spirit in the sensitive area of human personality.
What is seen or perceived by an artist is entitled to respect, unless there is a showing
that the product of his talent may be considered obscene. (Citing Kingsley vs.
Regents, 360 US 684, 695, 1959).
The “7 Dirty Words” (shit, piss, fuck, cunt, cocksucker, motherfucker, tits)
are seven English-language words that comedian George Carlin listed in 1972 in his
monologue / stand-up comedy routine “Seven Words you can never say on
television.” At that time, these words were considered inappropriate and unsuitable
for broadcast in the public airwaves in the US, whether radio or television.
Held: The routine was “indecent but not obscene.” The SC by a 5-4 decision
recognized that the government had a strong interest in shielding children from
potentially offensive material and ensuring that unwarranted speech does not
intrude on the privacy of one’s home. It upheld FCC’s power to regulate media,
citing two government interests:
1. the uniquely pervasive nature of these broadcasts allows them to seep into “the
privacy of the home” without the consent of the viewer; and
2. Broadcasts are uniquely accessible to children whose “vocabulary could be
enlarged in an instant” by hearing indecent or profane language.
These two concerns were sufficient “to justify special treatment of indecent
broadcasting. SC stated that FCC had the authority to prohibit such broadcasts
during hours when children were likely to be among the audience.
2. A warrant must be obtained from the judge. There must be probable cause
determined by the judge.
3. The materials confiscated must be brought to the court in the prosecution of the
accused for the crime charged.
4. The court shall determine if the confiscated items are indeed pornographic or
obscene.
Related Laws:
Works are protected by the sole fact of creation, irrespective of their mode or
form of expression, as well as of their content, quality and purpose” (Art. 172.2,
IPC). It subsists from the moment of creation. Copyright is a set of prerogatives
conferring on the authors of literary and artistic work control over the public
exploitation of their works and ensuring them remuneration to which they are
entitled in consideration of their creative work.
FAIR USE (Sec. 185.1, IPC) – A legal doctrine that permits limited use of
copyrighted material without having to first acquire permission from the copyright
holder. Fair use includes criticism, comment, news reporting, teaching including
multiple copies for classroom use, research and similar purposes
Relevant Law:
* Rule 71, Section 3(d), Rules of Court. The following may be punished for
contempt: “any improper conduct tending, directly or indirectly, to impede,
obstruct, or degrade the administration of justice.”
SUB JUDICE - a general term to describe the fact that an issue is before a court for
its determination. (Sibal, Jose Agaton, Philippine Legal Encyclopedia, QC: Central
Lawbook, 1986, p. 1001. Anyone who publishes comments on a sub judice case or
pending suit which may obstruct the fair administration of justice may be held
liable for contempt.
Held: Applying the clear and present danger test or the dangerous tendency
test, the SC held that it was far from the mind of Cabansag to put the court in
ridicule, or belittle or degrade it in the eyes of those to whom the letter was
addressed. He acted the way he did simply because he saw no other relief for the
early termination of his case.
CASE: People vs. Castelo and Abaya, (GR L-11816, 23 Apr 1962)
A news story regarding an extortion attempt in the Monroy murder case was
published in the Manila Bulletin while said case was pending. The news story was
written by the editor, Abaya who gathered his information from a coffee shop where
he overheard and recorded the conversation. The news story came to the knowledge
of Judge Rilloraza who was trying the Monroy murder case. The judge found
Abaya guilty of indirect contempt. Abaya, for his defense, asserted freedom of the
press.
The SC made the following observation: Police are prone to investigate case
openly and publicly even if the purpose is merely to establish a probable cause that
they may warrant legal prosecution. This practice should be stopped not only
because of the preliminary character of the inquiry but specially to save consequent
annoyance or embarrassment, if not loss of reputation, on the part of those
investigated who may later turn out to be innocent.
CASE: People vs. Alarcon, (GR 46551, 12 Dec 1939) (Laurel, C.J.)
Held. No contempt. The case had already been decided and became final, It
would be contemptuous if the newspaper columnist tended to obstruct, embarrass
or influence the court in the administration of justice in a pending suit or
proceedings.
Held The SC accepted the apologies and forgo the imposition of the sanction.
The Court realized that the picketers are not lawyers and are not knowledgeable in
the intricacies of law. But it reminded the members of the bart hat it is their duty as
officers of the court to apprise their clients on matters of decorum and proper
attitude toward courts of justice. The contempt charges were dismissed. But
henceforth, no demonstrations or pickets intended to pressure or influence the
courts into acting one way or the other on pending cases shall be allowed in the
vicinity and /or within the premises of any and all courts in the Philippines.
CASE: Roque vs. Chief of Staff, AFP, (GR 214986, 15 Feb 2017)
Held: Given this case’s factual milieu, the balance is served by the denying
the petition. At the time the AFP made Press Statement, there was no disbarment
case filed against Atty. Roque. Therefore, there was no proceeding to keep private.
Besides, the Press Statement does not divulge anything that merits punishment for
contempt. It is a brief, unembellished report that a complaint has been filed. It does
not divulge any act or character trait on the part of Atty. Roque that damage his
reputation. When a lawyer conducts his cases in a public manner, it would be an
abuse of the court’s contempt powers to stifle the subject of his attention. A lawyer
who uses the public for a as his battleground cannot expect to be protected from
public scrutiny. The Court must strike a balance between protecting officers of the
court from harassment on one hand, and the interests of freedom of speech on the
other.
C. FAIR CONDUCT OF ELECTIONS
Relevant Law:
* RA 9006, Fair Election Act. The purpose of the law is …“to guarantee or ensure
equal opportunity for public service including access to media time, space, …and
assure honest, orderly, honest, peaceful, credible elections.”
Held: The SC, in using the clear and present danger test and the balancing of
interest test, held that the Resolution is valid. There are other laws to compensate
with these minor limitations. The said restriction on free expression appears too
insignificant to create any appreciable dent on the person’s liberty of expression.
Comelec banned “exit polls” because it has the tendency to sow confusion
and the exit polls are highly unreliable because of its random method of selecting
interviewees. The exit poll result may not be in harmony with the official count of
Comelec.
Held: Exit polls, i.e., random polling of voters as they come out of the polling
booths, and the dissemination of their results through mass media constitute as an
essential part of freedoms of speech and the press. There is no clear and present
danger because the evils envisioned are merely speculative. No evidence that exit
poll results create disorder or confusion. The secrecy of the ballot is not
compromised as the contents of the ballot are not exposed. Revelation of voter’s
choice is voluntary, not compulsory. Narrowly tailored countermeasures may be
transcribed without transgressing the fundamental rights of people.
Held: Both Section 1, RA 9006 and the Comelec Resolution are invalid.
Comelec’s power over media is limited to ensure equal opportunity, time, space and
the right to reply. For content-related regulations to be valid, it must pass the
O’Brien test which requires the following:
The restriction does not pass the 3rd and 4th requisites of the O’Brien test. It
imposes a prior restraint on free speech and free press. It is a direct, absolute and
substantial suppression of a category of expression eventhough such suppression is
only for a limited period. The government interest sought to be promoted can be
achieved by means other than suppression.
Related Law: RA 1477 (Shield Law). This is an Act amending RA 53, entitled
‘An Act to exempt publishers, editors, columnists or reporters to any publication
from revealing the source of published news or information obtained in confidence,
except if the court or Congress finds that such revelation is demanded by the
security of the State. It removed “national interest” as one of the grounds for
exception. The amendment is in reaction to the decision of the Supreme in the case,
In Re: Parazo.
Star reporter Parazo published a story about “Claim Leak in Bar Results.”
He was asked by the Supreme Court to disclose his source. He declined and cited
RA 53 for his defense. He alleged that RA 53 provides for non-revelation of the
sources of a reporter’s story. However, RA 53 provides for exceptions, i.e. when the
“court or Congress finds that such revelation is demanded by the national security
or interest of the State.” Parazo argued that the story did not involve national
security. His counsel also contended that the bill of Senator Sotto only contained
“national security”; and did not include “interest of the State.”
Held: The final bill which was passed into law included the phrase “interest
of the State”. This case involves national interest. The SC is one of the three
coordinate and independent branches or departments of the government under the
Constitution. It is tasked the fair administration of justice. It also administers the
Bar exams. It is necessary to keep the confidence of the people in this High Tribunal
as regards the discharge of its functions.
E. ACADEMIC FREEDOM
Related Laws:
* Article XIV, Section 5 (2), Constitution, “Academic Freedom shall be enjoyed in
all institutions of higher learning.” This provision does not include elementary and
high schools.
Petitioner insists that she be admitted and allowed to enroll to pursue her
masteral studies in the graduate program of the Loyola School of Theology. The
school refused admission.
A student presented her dissertation during the oral defense. She was asked
to revise her work, after which she was allowed to graduate. Later, it was discovered
that she plagiarized her dissertation. So U.P. withdrew the doctoral degree already
granted.
Held: Valid. Academic freedom grants the University the exclusive
jurisdiction to determine to whom among its graduates it shall confer academic
recognition, based on its established standards.
Held: PRC rules are unreasonable and arbitrary. It violates the academic
freedom of schools.
CASE: Pimentel vs. Legal Education Board (LEB), 9GR 242954, 10 Sep
2019)
Held:
1. MO 7-2016, which requires all those seeking admissions to the basic law course to
take and pass a nationwide uniform law school admission test,” also known as the
Philsat;
2. MO 1-2011, Sec. 15, which requires law schools to refer to LEB for determination
of eligibility for admission all applicants who are graduates of foreign school; and,
which requires a specific number of units in English, Math and Social Science
subjects;
3. MO 1-2011, Sec. 6, which imposes that only those with basic law degree may be
admitted to graduate programs.
CAMPUS JOURNALISM
Related Law:
Sec. 7. A member of the publication staff is granted security of tenure and cannot be
expelled solely on the basis of the performance of his/her duties in the student
publication.
Held: Disciplinary action may be taken against the students who violated
school rules. However, considering the importance of the right of assembly and
petition for redress of grievance, the penalty imposed is too severe. The students do
not shed their constitutional rights to free speech or expression at the schoolhouse
gate,” (Citing Justice Fortes in Tinker vs. Des Moines Community School District,
393 US 503, 1969). Their right to discuss matters affecting their welfare or involving
public interest is not subject to be subjected to prior restraint or subsequent
punishment unless there is clear and present danger. However, the peaceful
character of the assembly could be lost by an advocacy of disorder under the name
of dissent. If the assembly is to be held in school premises, permit must be sought
from school authorities, who are devoid of the power to deny such request
arbitrarily or unreasonably. In granting such permit, there may be conditions as to
the time and place of the assembly to avoid disruption of classes or stoppage of work
of the non-academic personnel. Even if, however, there may be violations of its
terms, the penalty incurred should not be disproportionate to the offense.
1. Schools may impose discipline for violation of reasonable rules of the school like,
in this case, disturbance in illegal assembly
2. But the right to assembly is a cherished right. It can only be limited if it passed
the clear and present danger test.
3. Not only must the rules be reasonable; the penalty for violation of the rules must
also be reasonable. The penalty must be commensurate to the act which violated the
rules. The penalty of refusing enrolment for performing the constitutional right to
freedom of assembly, albeit non-peacefully is too severe.
4. However, the school may refuse enrolment due to academic deficiency for failing
to meet the academic standards of the school (academic freedom). But such
standards must likewise be reasonable.
Related Law:
* Article 133, RPC. It penalizes any person “performing acts notoriously offensive
to the feelings of the faithful in a place devoted to religious worship or during the
celebration of a religious ceremony”.
Celdran entered the Manila Cathedral displaying a placard bearing the word
“DAMASO,” referring to the fictional character in Jose Riza’s Noli Me Tangere,
while ecumenical service was going on inside the church; wearing a black suit and a
hat shouting, “Bishops, stop involving yourself in politics”, thereby disrupting and
showing disrespect to an otherwise solemn celebration. Celdran’s defense; it did not
happen during the celebration of the Holy Mass.
Held: SC, citing a 1939 case, People vs. Basa, (GR L-46000, 25 May 1939),
“whether or not the act complained of is offensive to the religious feelings of the
Catholics, is a question of fact which must be judged only according to the feelings
of the Catholics and not those of other faithful ones, for it is possible that certain
acts may offend the feelings of those who profess a certain religion, while not
offensive to the feelings of those professing another religion.
CASE: Lagunzad vs. Sotto vda. de Gonzalez, (GR L-32066, 6 Aug 1979)
Held: That does not dispense with the need for prior consent from the
deceased’s heirs to portray publicly episodes of the life of the deceased, his mother
and family. The right to protect the memory of the dead is also for the benefit of the
living.
2. Padilla is a public figure, therefore, the family has no property right over
the life of Padilla.
Held: Being a public figure does not ipso facto destroy in toto a person’s
right to privacy, especially when a little romance was included in the film.
Held: Free speech and press can be limited by the clear and present danger
test, and also by the balancing of interest test. Between the right to privacy and the
freedom of speech, the SC, using the balancing of interest test, ruled in favor of the
right to privacy.
Held: The SC, citing Dean Irene Cortes, ruled that the “Right to privacy, like
free speech, is not absolute. A limitation is permissible if the person is a PUBLIC
FIGURE and the information sought to be elicited from him or to be published
about him constitutes matters of PUBLIC CONCERN. SC made these findings;
1. People Power Revolution is of public interest and concern and does not
relate to the individual life and certainly not to the private life of Enrile.
* Professor Reynaldo G. Lopez is a Political Law and Political Science professor and a bar reviewer
in several law schools and review centers. He teaches Political Law Review, Constitutional Law,
Public Corporation, Administrative Law, Law on Public Officers, Election Laws, Human Rights
Law, Public International Law, Media Law and Ethics, Comparative Politics and Governments,
Political Geography, Political Sociology, Political Economics, Geopolitics and Philippine
Government. He was a full associate professor and coordinator of the Political Science Department in
the University of Santo Tomas, head of the Political Law Department and Assistant Dean of Arellano
University School of Law; Branch Clerk of Court, Regional Trial Court (Branch 125), Senior
Partner of Ochoa Lopez Law Office, Associate Lawyer of Syquia Law Offices, Executive Assistant
III of the Department of Foreign Affairs in Manila.
*This lecture material is for the exclusively use of the students of Prof. Reynaldo G. Lopez in
Constitutional Law who are under a Modified Enhanced Community Quarantine (MECQ) #covid
19. Any unauthorized copy, publication, sale, redistribution or reproduction of this work constitutes
a violation and infringement of his rights under the Intellectual Property Code and other existing
copyright laws.