NEAR VS.

MINNESOTA [283 US 697] Facts: The Attorney General sought to enjoin one publication, known as the SATURDAY PRESS, which allegedly comes under the Session Laws. The said law provides for the abatement, as a public nuisance, of a malicious, scandalous and defamatory newspaper, magazine or periodical. The law provided that any person who is engaged in the business of producing publishing or circulating, selling or possessing obscene lewd magazines, etc, or malicious, scandalous or defamatory newspaper etc., will be deemed nuisance. The malicious articles mentioned that a Jewish gangster was in control of gambling, bootlegging and racketeering, and that law enforcers were not energetically performing their duties. Most of the charges were directed against the Chief of Police for being grossly negligent of his duties, having illicit relations with the gangsters, and graft. It also accused the Mayor of dereliction. In short, the articles made serious accusations against the public officers named in connection with the prevalence of crimes and the failure to expose and punish them. Near, the defendant and owner of the publication, denied that the articles were malicious, scandalous and defamatory. He also assails the legality of the statute as violative of freedom of expression.

Issue: Whether or Not the proceeding authorized by the statute herein constitutes an infringement of the freedom of the press. Held: Yes. The insistence that the statute is designed to prevent the circulation of scandal which tends to disturb the public peace and to provoke assaults and the commission of crime is unavailing. The reason for the enactment, as the state court has said, is that prosecutions to enforce penal statutes for libel do not result in 'efficient repression or suppression of the evils of scandal.' In the present instance, the proof was that nine editions of the newspaper or periodical in question were published on successive dates, and that they were chiefly devoted to charges against public officers and in relation to the prevalence and protection of crime. In such a case, these officers are not left to their ordinary remedy in a suit for libel, or the authorities to a prosecution for criminal libel. The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher under an effective censorship. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse.' Public officers, whose character and conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. Characterizing the publication as a business, and the business as a nuisance, does not permit an invasion of the constitutional immunity against restraint. Nor can it be said that the constitutional freedom from previous restraint is lost because charges are made of derelictions which constitute crimes. The preliminary freedom, by virtue of the very reason for its existence, does not depend, as this court has said, on proof of truth. NEAR VS. MINNESOTA (freedom of expression prior restraint) SC: STATUTE INVALID. CENSORSHIP. Infringes the liberty of the press (14th Am.) The liberty of the Press and of Speech is within the liberty protected by the due process clause. The statute in question must be tested based on its OPERATION AND ITS EFFECTS, as follows:

1) The statute is not aimed at the redress of individual or private wrongs. The remedies for libel remain available and unaffected. The statute is directed at the DISTRIBUTION of scandalous matter, detrimental to public morals and general welfare. In order to suppress publication of a newspaper, it is not necessary to prove the falsity of the charges. In this case, there was no allegation that the matter published was false. What the statute requires is that the publication be malicious. Here, the statute still permits the defense of TRUTH, but also that the TRUTH WAS PUBLISHED WITH GOOD MOTIVES AND FOR JUSTIFIABLE ENDS. 2) The Statute directed not simply at the circulation of scandalous or defamatory statements, but at the CONTINUED PUBLICATION of such articles. 3) The object of the statute is not punishment but suppression of the offending newspaper. It is the continued publication of the article that constitutes the business and the declared nuisance. Under the statute, a publisher faces not simply a possibility of verdict against him in a suit for libel, but goes further to declare the business as a nuisance, unless the publisher is able to put up a defense to prove the truth of the charges, and that it was published with good motives and justifiable ends. Otherwise, if he fails to do these, his business is abated. Thus, suppression is accomplished by enjoining the publication and that restraint is the object and effect of the statute. 4) The statute not only operates to suppress the offending newspaper, but to put the publisher under effective censorship. This is because when a malicious or scandalous newspaper which has been declared as a nuisance resumes business, it will be punished again as a contempt of court, by fine or imprisonment. Note also that the law does not give any definition of the words scandalous, malicious and defamatory.

may bring the owner or publisher of a newspaper before a judge upon a charge of publishing scandalous and defamatory material (such as the charges against the public officers) and unless he is able to bring evidence to provethat the charges are true and that they are publish with good motives and for justifiable ends, his newspaper will be suppressed, and further publication is made punishable as contempt. THIS IS THE ESSENCE OF CENSORSHIP. The security of freedom of the press (and expression) requires that it should be exempt not only from prior restraint from the executive, but also from legislative restraint. The purpose of the constitutional provision is to prevent all such prior restraints upon publication. For whatever wrong the appellant has committed or may commit by his publications, there is still redress with libel laws. As has been noted, the statute in question does not deal with punishments, as it provides for no punishments (except in case of contempt) but the statute provides for the suppression and injunction, and ultimately, restraint, upon publication. The statute in question cannot be justified by the reason that the publisher is permitted to show anyway, that the material is true and published with good motives. If it were so, then the legislature could provide that any time the publisher can bring his proof of the truth and his good motives. Then the legislature can also provide for a machinery of determining in the complete exercise of its discretion what would be justifiable ends and restrain publication accordingly. THIS IS A STEP TO A COMPLETE SYSTEM OF CENSORSHIP. NEW YORK TIMES VS. UNITED STATES [403 US 713] Facts:

The court granted certiorari in the cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Said articles reveal the workings of government that led to the Vietnam war. The Government argues that "the authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in- Chief. In such case the Executive Branch seeks judicial aid in preventing publication. The court ruled in favor of the newspaper companies hence the appeal. Issue: Whether or not the freedom of the press was abridged. Held: Yes. 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 (Bill of Rights) and destroy the fundamental liberty and security of the very people the Government hopes to make "secure." No branch of government could abridge the people's rights granted by the Constitution including the freedom of the press. The language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. Alexander v. United States Brief Fact Summary. The Petitioner, Alexander (Petitioner), owned adult bookstores throughout the state. He was convicted of selling obscene pornographic tapes and racketeering. The Respondent, the United States (Respondent), ordered him to forfeit all of his businesses. Synopsis of Rule of Law. A prior restraint is an administrative or judicial order forbidding certain communications before they occur. Facts. The Petitioner owned 13 adult bookstores throughout Minnesota. He was convicted on 17 obscenity counts and 3 RICO violations. The obscenity convictions were based on the sale of 4 magazines and 3 videotapes. He was sentence to 6 years in prison, fined $100,000 and ordered to pay the cost of trial and incarceration for the obscenity counts. In addition, he was ordered to forfeit his businesses and nearly $9 million in profits. Issue. Is the court order to shut down the adult bookstores an unconstitutional prior restraint on speech? Held. No. The Supreme Court of the United States (Supreme Court) rejected the argument that the sentence violated Petitioners First Amendment constitutional rights, but remanded for reconsideration under the Eighth Amendment of the United States Constitution (Constitution). The items were seized as punishment not a prior restraint. Dissent. This is an authorization to suppress disfavored speech. Discussion. The majority emphasizes the definition of a prior restraint to distinguish it from a subsequent judgment. The stores were shut down because they were related to past wrongdoings. The Petitioner is free to start another adult bookstore chain once he serves his sentence. So, this action is not a content-based restraint. IGLESIA NI KRISTO VS. CA (freedom of religion.)

nd propagates religious beliefs, doctrines etc, and makes comparative studies with other religions.

attack another religion. (In that program, the INK criticizes the Catholic Church for its veneration of the Virgin Mary. The INK suggests a very literal translation of the Bible and nowhere in the Bible is there a veneration for the Virgin Mary.) he MTRCB decision (allowed the showing of the program). A civil case was filed by the INK against the MTRCB for gadalej in giving them an X-rating and requiring them to submit VTR tapes.

hould stop the program and refrain from attacking other religions.

ISSUES: Whether the program is constitutionally protected exercise of religious expression. Whether it is subject of the police power of the state. Whether there was clear and present danger to stop the program. Whether MTRC has the power to censor religious programs. Whether the religious program is indecent and contrary to law and good customs. SC: MTRCB WAS WRONG. INK IS CORRECT. The law gives the Board the power to screen, review and examine all television programs. By the clear terms of the law, the Board has the power to approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x. The law also directs the Board to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime. Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present. We have affirmed this preferred status well aware that it is designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and freedom to act on ones beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to regulation where the belief is translated into external acts that affect the public welfare. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears ofchildren. For sure, we shall continue to subject any act pinching the space for the free exercise of religion to a heightened scrutiny

but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still. First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech, including religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar. (here the MTRCB violated the prohibition against prior restraint). Prior restraint includes religious speech. Second. The evidence shows that the Board x-rated the TV series for attacking other religions, especially the Catholic church. An examination of the evidence, especially Exhibits A, A-1, B, C, and D will show that the so-called attacks are mere criticisms of some of the deeply held dogmas and tenets of other religions. The CA also did not review the VTR Tapes. The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth. (ESSENCE OF FREEDOM TO DIFFER). Third. The respondents cannot also rely on the ground attacks against another religion in x-rating the religious program of petitioner. Even a sideglance at Section 3 of PD 1986 will reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioners television program. The ground attack against another religion was merely added by the respondent Board in its Rules. Fourth. Inx-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground. IGLESIA NI CRISTO VS. COURT OF APPEALS [259 SCRA 529; G.R. NO. 119673; 26 JUL 1996] Facts: Petitioner has a television program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and propagates petitioner's religious beliefs, doctrines and practices often times in comparative studies with other religions. Petitioner submitted to the respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which

is expressly prohibited by law." On November 28, 1992, it appealed to the Office of the President the classification of its TV Series No. 128 which allowed it through a letter of former Executive Secretary Edelmiro A. Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of the respondent Board. According to the letter the episode in is protected by the constitutional guarantee of free speech and expression and no indication that the episode poses any clear and present danger. Petitioner also filed Civil Case. Petitioner alleged that therespondent Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 19861 in relation to Article 201 of the Revised Penal Code. The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible. The board contended that it outrages Catholic and Protestant's beliefs. RTC ruled in favor of petitioners. CA however reversed it hence this petition. Issue: Whether or Not the "ang iglesia ni cristo" program is not constitutionally protected as a form of religious exercise and expression. Held: Yes. Any act that restrains speech is accompanied with presumption of invalidity. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. This is true in this case. So-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other religions. RTCs ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. attack is different from offend any race or religion. The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Respondent board cannot censor the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. The basis of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. It is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil. It is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil apprehended cannot be established. The determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an administrative body such as a Board of Censors." A system of prior restraint may only be validly administered by judges and not left to administrative agencies.

RANDOLF DAVID, et al. v. GLORIA MACAPAGAL-ARROYO, et al. G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, 3 May 2006, Sandoval-Gutierrez, J. (En Banc)

Section 18, Article VII of the Constitution grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. The only criterion for the exercise of the calling-out power is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. But the President must be careful in the exercise of her powers. Every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations.On February 24, 2006, as the nation celebrated the 20th Anniversary of the EDSA People Power I, President Gloria Macapagal-Arroyo, in a move to suppress alleged plans to overthrow the government, issued Presidential Proclamation No. 1017 (PP 1017), declaring a state of national emergency. She cited as factual bases for the said issuance the escape of the Magdalo Group and their audacious threat of the Magdalo D-Day; the defections in the military, particularly in the Philippine Marines; and the reproving statements from the communist leaders. On the same day, she issued General Order No. 5 (G.O. No. 5) setting the standards which the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) should follow in the suppression and prevention of acts of lawless violence. The following were considered as additional factual bases for the issuance of PP 1017 and G.O. No. 5: the bombing of telecommunication towers and cell sites in Bulacan and Bataan; the raid of an army outpost in Benguet resulting in the death of three soldiers; and the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th People Power I anniversary celebration. It revoked permits to hold rallies. Members of the Kilusang Mayo Uno (KMU) and the National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), who marched from various parts of Metro Manila to converge at the EDSA Shrine, were violently dispersed by anti-riot police. Professor Randolf David, Akbayan partylist president Ronald Llamas, and members of the KMU and NAFLU-KMU were arrested without a warrant. In the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) raided the Daily Tribune offices in Manila and confiscated news stories, documents , pictures, and mockups of the Saturday issue. Policemen were stationed inside the editorial and business offices, as well as outside the building. A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The PNP warned that it would take over any media organization that would not follow standards set by the government during the state of national emergency. On March 3, 2006, exactly one week from the declaration of a state of national emergency and after all the present petitions had been filed, President Arroyo issued Presidential Proclamation No. 1021 (PP 1021), declaring that the state of national emergency has ceased to exist and lifting PP 1017. These consolidated petitions for certiorari and prohibition allege that in issuing PP 1017 and G.O. No. 5, President Arroyo committed grave abuse of discretion. It is contended that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. ISSUES: 1.) Whether or not the issuance of PP 1021 rendered the present petitions moot and academic; 2.) Whether or not the petitioners have legal standing; 3.) Whether or not there were factual bases for the issuance of PP 1017; 4.) Whether or not PP 1017 is a declaration of Martial Law;

5.) Whether or not PP 1017 arrogates unto the President the power to legislate; 6.) Whether or not PP 1017 authorizes the President to take over privately-owned public utility or business affected with public interest; and 7.) Whether or not PP 1017 and G.O. No. 5 are constitutional HELD: The Petitions are PARTLY GRANTED. The issuance of PP 1021 did not render the present petitions moot and academic because all the exceptions to the moot and academic principle are present. The moot and academic principle is not a magical formula that can automatically dissuade the courts from resolving a case. Courts will decide cases, otherwise moot and academic, if: (1)there is a grave violation of the Constitution; (2)the exceptional character of the situation and the paramount public interest is involved; (3)the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and (4)the case is capable of repetition yet evading review. All these exceptions are present here. It is alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the public interest, involving as they do the peoples basic rights to the freedoms of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. Lastly, the contested actions are capable of repetition. Certainly, the present petitions are subject to judicial review. All the petitioners have legal standing in view of the transcendental importance of the issue involved. It has been held that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met: (a)the cases involve constitutional issues; (b)for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional; (c)for voters, there must be a showing of obvious interest in the validity of the election law in question; (d)for concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled early; and (e)for legislators, there must be a claim that the official action complained of infringes upon their prerogatives as legislators. Being a mere procedural technicality, however, the requirement of locus standi may be waived by the Court in the exercise of its discretion. The question of locus standi is but corollary to the bigger question of proper exercise of judicial power. Undoubtedly, the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. In view of the transcendental importance of this issue, all the petitioners are declared to have locus standi. There were sufficient factual bases for the Presidents exercise of her calling-out power, which petitioners did not refute. In Integrated Bar of the Philippines v. Zamora (338 SCRA 81 [2000]), the Court considered the Presidents calling-out power as a discretionary power solely vested in his wisdom. It is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis. Nonetheless, the Court stressed that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. Under the expanded power of judicial review, the courts are authorized not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or

excess of jurisdiction on the part of any branch or instrumentality of the government. As to how the Court may inquire into the Presidents exercise of the power, Lansang v. Garcia (42 SCRA 448 *1971+) adopted the test that judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct, but that the President did not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness. Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Petitioners did not refute such events. Thus, absent any contrary allegations, the President was justified in issuing PP 1017 calling for military aid. Judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. In times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations. PP 1017 is not a declaration of Martial Law, but merely an invocation of the Presidents calling-out power. Section 18, Article VII of the Constitution grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. The only criterion for the exercise of the calling-out power is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. Considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to determine the actual condition of the country. But the President must be careful in the exercise of her powers. Every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. In declaring a state of national emergency, President Arroyo did not only rely on Sec. 18, Art. VII of the Constitution, but also on Sec. 17, Art. XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. It is plain in the wordings of PP 1017 that what President Arroyo invoked was her callingout power. PP 1017 is not a declaration of Martial Law. As such, it cannot be used to justify acts that can be done only under a valid declaration of Martial Law. Specifically, arrests and seizures without judicial warrants, ban on public assemblies, take-over of news media and agencies and press censorship, and issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. The second provision of the operative portion of PP 1017 states: and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. The operative clause of PP 1017 was lifted from PP 1081, which gave former President Marcos legislative power. The ordinance power granted to President Arroyo under the Administrative Code of 1987 is limited to executive orders, administrative orders, proclamations, memorandum orders, memorandum circulars, and general or special orders. She cannot issue decrees similar to those issued by former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution.

Legislative power is peculiarly within the province of the Legislature. Neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. It follows that these decrees are void and, therefore, cannot be enforced. She cannot call the military to enforce or implement certain laws. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. PP 1017 does not authorize President Arroyo during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Generally, Congress is the repository of emergency powers. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (a)there must be a war or other emergency; (b)the delegation must be for a limited period only; (c)the delegation must be subject to such restrictions as the Congress may prescribe; and (d)the emergency powers must be exercised to carry out a national policy declared by Congress. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Sec. 17, Art. XII of the Constitution states that the the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest, it refers to Congress, not the President. Whether or not the President may exercise such power is dependent on whether Congress may delegate it to her pursuant to a law prescribing the reasonable terms thereof. There is a distinction between the Presidents authority to declare a state of national emergency and her authority to exercise emergency powers. Her authority to declare a state of national emergency is granted by Sec. 18, Art. VII of the Constitution, hence, no legitimate constitutional objection can be raised. The exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can she determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. The illegal implementation of PP 1017, through G.O. No. 5, does not render these issuances unconstitutional. The criterion by which the validity of a statute or ordinance is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from its exertion. PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights. But when in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens rights under the Constitution, the Court has to declare such acts unconstitutional and illegal. David, et al. were arrested without a warrant while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. Likewise, the dispersal and arrest of members of KMU, et al. were unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits to hold rallies. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right

to prevent. Furthermore, the search of the Daily Tribune offices is illegal. Not only that, the search violated petitioners freedom of the press. It cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the offices, and the arrogant warning of government officials tomedia, are plain censorship. The acts of terrorism portion of G.O. No. 5 is, however, unconstitutional. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. The phrase acts of terrorism is still an amorphous and vague concept. Since there is no law defining acts of terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of the Constitution. People vs. Perez FACTS: Isaac Perez while holding a discussion with several persons on political matters uttered the following words "And the Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the Philippines. Because of such utterances, he was charged in the CFI of Sorsogon with violation of Art. 256 of the RPC which has something to do with contempt of ministers of the Crown or other persons in authority. He was convicted. Hence, this appeal. ISSUE: WON Perezs remarks is protected by the constitutional protection on freedom of speech. Or WON the provisions of Act No. 292 should be interpreted so as to abridge the freedom of speech and the right of the people to peacebly assemble and petition the Government for redress of grievances. HELD: No , it is not. Agreed with the lower court in its findings of facts but convicted the accused for violation of Act No.292 (Section 8). 1RATIO DECIDENDI: 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 this instance, the attack on the Governor-General passes the furthest bounds of free speech was intended. There is a seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. 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.

1.Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels against the Government of the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or make any statement, or speech, or do any act which tends to disturb or obstruct any lawful officer in executing his office or in performing his duty, or which tends to instigate others to cabal or meet together for unlawful purposes, or which suggests or incites rebellious conspiracies or which tends to stir up the people against the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the Government, or who shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding two thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the discretion of the court.

Dennis v. United States 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. The 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. No. 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. Discussion. The Supreme Court of the United States (Supreme Court) is essentially allowing the prohibitions of advocacy of a particular doctrine in this case the overthrow of the government by force. In later opinions the Supreme Court will adopt a more rigid test that focuses on whether a speaker is advocating actions. GONZALES VS. COMELEC [27 SCRA 835; G.R. L-27833; 18 APR 1969] Facts: RA 4880 which took effect on June 17, 1967, prohibiting the too early nomination of candidates and limiting the period of election campaign or partisan political activity was challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Petitioner Cabigao was, at the time of the filing 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 November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through selfrestraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect. Senator Lorenzo M. Taada was asked to appear as amicus curiae, and elucidated that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were requested to give their opinions. Respondents contend that the act was based on the police power of the state. Issue: Whether or Not RA 4880 unconstitutional. Held: Yes. As held in Cabansag v. Fernandez there are two tests that may supply an acceptable criterion for permissible restriction on freedom of speech. These are the clear and present danger rule and the 'dangerous tendency' rule. The first, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. It has the advantage of establishing according to the above decision a definite rule in constitutional law. It provides the criterion as to what words may be publicly established. The "dangerous tendency rule" is such that If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is substantive evil which the legislative body seeks to prevent. The challenged statute

could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine. As the author Taada clearly explained, such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. The prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. In RE: Declaratory Relief RE Constitutionality of RA 4880. Gonzales vs. Commission on Elections [GR L27833, 18 April 1969] En Banc, Fernando (J): 4 concur in result, 3 filed own separate opinions 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. AYER PRODUCTIONS VS. CAPULONG [160 SCRA 861; G.R. NO. L-82380; 29 APR 1988] 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 sixhour 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 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 to 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. Ayer Production Pty. Ltd. vs. Capulong [GR L-82380, 29 April 1988]; also McElroy vs. Capulong [GR L82398] En Banc, Feliciano (J): 13 concur Facts: Hal McElroy, an Australian film maker, and his movie production company,Ayer Productions Pty. Ltd., envisioned, sometime in 1987, the filming for commercial viewing and for Philippine and international release, the historic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). McEleroy discussed this project with local movie producer Lope V. Juban, who advised that they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as well as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. In a letter dated 16 December 1987, McElroy, informed Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it. On 21 December 1987, Enrile replied that "he would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised McElroy that "in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to him or any member of his family, much less to any matter purely personal to them." It appears that McElroy acceded to this demand and the name of Enrile was deleted from the movie script, and McElroy proceeded to film the projected motion picture. On 23 February 1988, Enrile filed a Complaint with application for Temporary Restraining Order and Writ of Preliminary Injunction with the Regional Trial Court of Makati (Civil Case 88-151; Branch 134), seeking to enjoin McElroy, et. al. from producing the movie "The Four Day Revolution." The complaint alleged that McElroy, et. al.'s production of the miniseries without Enrile's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, McElroy filed a Motion to Dismiss with Opposition life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. In an Order dated 16 March 1988, the trial court issued a writ of Preliminary Injunction against the McElroy, et. al. On 22 March 1988, Ayer Productions filed a Petition for Certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order with the Supreme Court (GR L-82380). A day later, or on 23 March 1988, McElroy also filed a separate Petition for Certiorari with Urgent Prayer for a

Restraining Order or Preliminary Injunction, dated 22 March 1988 (GR L-82398). By a Resolution dated 24 March 1988, the petitions were consolidated. Issue: Whether depiction of Enrile, as part of the events in the 1986 People Power Revolution and not as to his personal life nor his family, in the film The Four Day Revolution requires his prior consent. Held: The freedom of speech and of expression includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a universally utilized vehicle of communication and medium of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore, the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community, as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in part to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exercise of constitutionally protected freedom of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing claim of Enrile is to a right of privacy. Our law, constitutional and statutory, does include a right of privacy. It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of a public character. Succinctly put, the right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from "unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern." Herein, there is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by McElroy, et. al. The Judge has restrained them from filming and producing the entire proposed motion picture. The Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by Enrile and issuing a Preliminary Injunction 20 days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither Enrile nor the trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that Enrile could lawfully assert. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the train of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern, and also of international interest. The subject relates to a highly critical stage in the history of this country and as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject matter does not relate to the individual life and certainly not to the private life of Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile; but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986. The extent of theintrusion upon the life of Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Enrile does not claim that McElroy, et. al. threatened to depict in "The Four Day Revolution" any part of the private life of Enrile or that of any member of his

family. The line of equilibrium in the specific context of the present case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. There must, further, be no presentation of the private life of the unwilling individual (Enrile) and certainly no revelation of intimate or embarrassing personal facts. The proposed motion picture should not enter into a "matters of essentially private concern." To the extent that "The Four Day Revolution" limits itself in portraying the participation of Enrile in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into Enrile's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from Enrile. ROXAS V DE ZUZUARREGUI, JR. CHICO-NAZARIO: January 31, 2006 FACTS - 1977, the National Housing Authority (NHA) filed expropriationproceedings against the Zuzuarreguis for parcels of land belonging tothem situated in Antipolo, Rizal with a total land area of 1, 790, 570.36- The Zuzuarreguis engaged the legal services of Attys. Romeo G. Roxasand Santiago N. Pastor- They executed a Letter-Agreement dated April 22, 1983 which indicated that the contingent fees that the lawyers will receive at P11 or more per square meter is thirty percent of the just compensationThe appropriate proceedings thereafter ensued and on October 29, 1984,a Partial Decision was rendered fixing the just compensation to be paid to the Zuzuarreguis at P30 per square meter- The NHA filed a Motion for Reconsideration for the lowering of the amount of just compensation in accordance with applicable laws- Pending the resolution of the MFR filed by the NHA, a joint special power of attorney was executed by the Zuzuarreguis in favor of Attys. Roxas and Pastor- On December 10, 1985, a Letter-Agreement was executed by and between the Zuzuarreguis and Attys. Roxas and Pastor which fixed the just compensation due the Zuzuarreguis at P17, and anything in excess of that shall be the contingent fees of Attys. Roxas and Pastor for their legal services- Resolution No. 1174 dated December 16, 1985, issued by the NHA, stated that the property would be acquired at a cost of P19.50 per square meter and that it will be paid in NHA Bonds which the yield would be based on the Central Bank rate at the time of the payment- As a result of the NHA Resolution, a Compromise Agreement was executed and it was approved by the Court in a Decision dated December20, 1985.- Computed at P19.50 per square meter, the property of the Zuzuarreguis was expropriated at a total price of P34, 916, 122. The total amount released by the NHA was P54, 500, 00. The difference of P19, 583, 878 is, undoubtedly, the yield of the bonds.- The amount turned over to the Zuzuarreguis by Atty. Roxas amounted toP30, 520, 000 in NHA bonds- On August 25, 1987, a letter was sent by the Zuzuarreguis new counsel to Attys. Roxas and Pastor demanding that the latter deliver to theZuzuarreguis the yield corresponding to bonds paid by the NHA within aperiod of 10 days from receipt, under pain of administrative, civil and/orcriminal action- Attys. Roxas and Pastor answered stating that the amount that they goseems huge from the surface but it just actually passed their hands.- On September 29, 1987, a letter was again sent to Attys. Roxas andPastor formally terminating their services- The Zuzuarreguis then filed a civil action for Sum of Money and Damages, they demanded that the yield on the NHA bonds be turned over to them- The RTC dismissed the complaint- The Zuzuarreguis filed a Notice of Appeal- The Court of Appeals ordered Attys. Roxas and Pastor to return to theplaintiffs the amount of P12, 596, 425, already deducting the reasonableattorneys fees in the amount of P4,4 76,426.275- Attys. Roxas and Pastor filed a MFR- The Zuzuarreguis also filed a MFR- The NHA and Pedrosa also filed a MFR- All MFRs were denied for lack of merit- Attys. Roxas and Pastor then filed a petition for certiorari ISSUES 1. WON the letter-agreement executed by the parties should stand as lawbetween them2. WON the contingent fees were reasonable

HELD 1. Yes. A contract is a meeting of the minds between two persons wherebyone binds himself, with respect to the other, to give something or torender some service. The Zuzuarreguis, in entering into the Letter-Agreement, fully gave their consent thereto. In fact, it was them who sentthe said letter to Attys. Roxas and Pastor, for the purpose of confirming allmatters which they had agreed upon previously. There is absolutely noevidence to show that anybody was forced into entering into the LetterAgreement. It is basic that a contract is the law between the parties.2. No. Under the contract in question, Attys. Roxas and Pastor are toreceive contingent fees for their professional services. Canon 13 of the Canons of Professional Ethics states: a contract for contingent fee, where sanctioned by law, should be reasonable under all the circumstances of the case including the risk and uncertainty of the compensation, but should always be subject t o the supervision of a court, as to its reasonablenessCanon 20, Rule 20.01 of the Code of Professional Responsibility statesthe guidelines by which a lawyer should determine his fees (seeoriginal) - Indubitably entwined with the lawyers duty to charge only reasonablefees is the power of this Court to reduce the amount of attorneys fees if the same is excessive and unconscionable (Section 24, Rule 138, Rules of Court). Attorneys fees are unconscionable if they affront ones sense of justice, decency or reasonableness. Therefore, the power to determinethe reasonableness of attorneys fees stipulated by the parties is a matterfalling within the regulatory prerogative of the courts.- In the instant case, Attys. Roxas and Pastor received an amount which isequal to 44% of the just compensation paid by the NHA to theZuzuarreguis. Considering that there was no full blown hearing in theexpropriation case, ending as it did in a Compromise Agreement, the 44%is undeniably excessive. In the opinion of the Court, 87.17% of the yieldsof the bond should go to the Zuzuarreguis computing from the amounts stipulated in the Letter-Agreement. The remaining amount is what is dueto Attys. Roxas and Pastor. The SC affirms the decision of CA withmodification in the computation of the attorneys contingent fees 391 U.S. 367 United States v. O'Brien (No. 232)Argued: January 24, 1968 Decided: May 27, 1968 [*] O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating 50 U.S.C.App. 462(b), a part of the Universal Military Training and Service Act, subdivision (3) of which applies to any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . ," the words italicized herein having been added by amendment in 1965. The District Court rejected O'Brien's argument that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose. The Court of Appeals held the 1965 Amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 Amendment was already punishable, since a Selective Service System regulation required registrants to keep their registration certificates in their "personal possession at all times," 32 CFR 1617.1, and willful violation of regulations promulgated under the Act was made criminal by 50 U.S.C.App. 462(b)(6). The court, however, upheld O'Brien's conviction under 462(b)(6), which, in its view, made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 Amendment. Held:1. The 1965 Amendment to 50 U.S.C.App. 462(b)(3) is constitutional as applied in this case. Pp. 375, 376-382. (a) The 1965 Amendment plainly does not abridge free speech on its face. P. 375. (b) When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. P. 376. (c) A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers [p368] an important or substantial governmental interest unrelated to the

suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest. The 1965 Amendment meets all these requirements. P. 377. (d) The 1965 Amendment came within Congress'."broad and sweeping" power to raise and support armies and make all laws necessary to that end. P. 377. (e) The registration certificate serves purposes in addition to initial notification, e.g., it proves that the described individual has registered for the draft; facilitates communication between registrants and local boards, and provides a reminder that the registrant must notify his local board of changes in address or status. The regulatory scheme involving the certificates includes clearly valid prohibitions against alteration, forgery, or similar deceptive misuse. Pp. 378-380.

(f) The preexistence of the nonpossession regulation does not negate Congress' clear interest in providing alternative statutory avenues of prosecution to assure its interest in preventing destruction of the Selective Service certificates. P. 380. (g) The governmental interests protected by the 1965 Amendment and the nonpossession regulation, though overlapping, are not identical. Pp. 380-381. (h) The 1965 Amendment is a narrow and precisely drawn provision which specifically protects the Government's substantial interest in an efficient and easily administered system for raising armies. Pp. 381-382. (i) O'Brien was convicted only for the willful frustration of that governmental interest. The noncommunicative impact of his conduct for which he was convicted makes his case readily distinguishable from Stromberg v. California, 283 U.S. 359 (1931). P. 382. 2. The 1965 Amendment is constitutional as enacted. Pp. 382-385. (a) Congress' purpose in enacting the law affords no basis for declaring an otherwise constitutional statute invalid. McCray v. United States, 195 U.S. 27 (1904). Pp. 383-384.

(b) Grosjean v. American Press Co., 297 U.S. 233 (1936) and Gomillion v. Lightfoot, 364 U.S. 339 (1960), distinguished. Pp. 384-385. [p369] United States v. OBrien Brief Fact Summary. The Defendant, OBrien (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 Defendants 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 requirement s. 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. SANIDAD vs. COMELEC 181 SCRA 529 Facts: On 23 October 1989, RA 6766 (Act providing for an organic act for the Cordillera Autonomous Region) was enacted into law. The plebiscite was scheduled 30 January 1990. The Comelec, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), RA 6766 and other pertinent election laws, promulgated Resolution 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. Pablito V. Sanidad, a newspaper columnist of Overview for the Baguio Midland Courier assailed the constitutionality of Section 19 (Prohibition on columnists, commentators or announcers) of the said resolution, which provides During the plebiscite campaign period, on the day before and on 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 issues. Issue: Whether columnists are prohibited from expressing their opinions, or should be under Comelec regulation, during plebiscite periods.

Held: Article 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. Neither Article IX-C of the Constitution nor Section 11-b, 2nd paragraph of RA 6646 (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) 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 2167 has no statutory basis. Sanidad vs. Commission on Elections [GR 90878, 29 January 1990] En Banc, Medialdea (J): 14 concur Facts: On 23 October 1989, Republic Act 6766, entitled "An Act Providing for an Organic Act for the Cordillera Autonomous 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 KalingaApayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last 27 December 1989 which was, however, reset to 30 January 1990 by virtue of Comelec Resolution 2226 dated 27 December 1989. The Commission on Elections (COMELEC), by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said RA 6766 and other pertinent election laws, promulgated Resolution 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. In a petition for certiorari dated 20 November 1989, 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 2167, which provides that "During the plebiscite campaign period, on the day before and on 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 issues." Sanidad alleged 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. Issue: Whether the COMELEC, through Section 19 of Comelec Resolution 2167, restricts Sanidads freedom of expression for no justifiable reason. Held: It is clear from Article IX-C of the 1987 Constitution that what was granted to the COMELEC was thepower 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. 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 paragraph of RA6646 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 2167

has no statutory basis. Plebiscite issues 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 issues, including the forum. The people affected by the issues 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 Comelec 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. While the limitation in Section 19 of Comelec Resolution 2167 does not absolutely bar Sanidad's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by the COMELEC to justify such abridgement. This form of regulation, thus, is tantamount to a restriction of Sanidad's freedom of expression for no justifiable reason. SANIDAD VS. COMELEC Facts: This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the press. On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS 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 originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989. The Commission on Elections, by virtue of the power vested by the 1987 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 Organic Act for the Cordillera Autonomous Region. 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: Section 19. 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 Comelec 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. NATIONAL PRESS CLUB VS. COMELEC [201 SCRA 1; G.R. NO. 1026653; 5 MAR 1992] 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 1992 elections; 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. 66461 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (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. ADIONG VS. COMELEC freedom of speech and the electoral process - censorship

places, and limiting their location or publication to authorized posting areas.

anyplace, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one: Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size."

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 the Omnibus Election Code and Republic Act No. 6646. In addition, the petitioner believes that there is already a ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium campaigning. ISSUE: Does it violate freedom of speech and expression? SC: YES. The prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case. All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right, to know are undully curtailed. The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled. 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. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. Also, 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. 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. We have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information. Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. The provisions allowing regulations are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. Finally, the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance. 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. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare

his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties. The prohibition becomes CENSORSHIP ADIONG VS. COMELEC [207 SCRA 712; G.R. NO. 103956; 31 MAR 1992] Facts: COMELEC promulgated Resolution No. 2347 which provides that decals and stickers may be posted only in any of the authorized posting areas, prohibiting posting in "mobile" places, public or private. Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the Resolution. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. Issue: Whether or Not the COMELECs prohibition unconstitutional. Held: The prohibition unduly infringes on the citizen's fundamental right of free speech. The preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. The so called balancing of interests individual freedom on one hand and substantial public interests on the other is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. The regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled. 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. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. 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. 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 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. Osmena v. Comelec (March 31, 1998) Facts: -Emilio Osmena and other petitioners are candidates in the National Elections. -R.A. No. 6646, the Electoral Reforms Law of 1987, prohibits mass media from selling or giving free of charge print space or air time for campaign or other political purposes, except to the Commission on Elections. -They contend that events after the ruling in National Press Club v. Commission on Elections have called into question the validity of the very premises of that decision.

-NPC v. COMELEC upheld the validity of R.A. No. 6646 against claims that it abridged freedom of speech and of the press. In urging a reexamination of that ruling, petitioners claim that experience in the last five years since the decision in that case has shown the undesirable effects of the law because the ban on political advertising has not only failed to level the playing field, but actually worked to the grave disadvantage of the poor candidate*s+ by depriving them of a medium which they can afford to pay for while their more affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and handbills. -However, no empirical data were presented by the petitioners to back up their claim. They instead they make arguments from which it is clear that their disagreement is with the opinion of the Court on the constitutionality of R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in that case. Issue: WON upholding the validity of RA 6646 actually worked in favor of richer candidates Held: Petition DISMISSED Ratio: It is incorrect to claim that the purpose of RA 6646 is equality of the candidates when what its provisions really speak of is equality in opportunity. The main purpose of the RA is regulatory. Any restriction on speech is only incidental, and it is no more than is necessary to achieve its purpose of promoting equality of opportunity in the use of mass media for political advertising. The restriction on speech, as pointed out in NPC, is limited both as to time and as to scope. Assuming that rich candidates can spend for parades, rallies, motorcades, airplanes and the like in order to campaign while poor candidates can only afford political ads, the gap between the two will not necessarily be reduced by allowing unlimited mass media advertising because rich candidates can spend for other propaganda in addition to mass media advertising. Moreover, it is not true that 11(b) has abolished the playing field. What it has done, as already stated, is merely to regulate its use through COMELEC-sponsored advertising in place of advertisements paid for by candidates or donated by their supporters. ABS-CBN Broadcasting Corporation v. Commission on Elections Facts: This is a Petition for Certiorari assailing Commission on Elections (Comelec) en banc Resolution No. 98-1419 1 dated April 21, 1998. In the said Resolution, the poll body "RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same." The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections and to make [an] exit survey of the vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately." The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized ABS-CBN to undertake the exit survey. Held: The Supreme Court grants the petition; the Comelec resolution is nullified. Freedom of expression a fundamental principle of a democratic government. The freedom of expression is a fundamental principle of our democratic government. It is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. At the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the

truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change. It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open. 18 It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any matter of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. Freedom of expression; limited by valid exercise of police power. The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances. They are not immune to regulation by the State in the exercise of its police power. Theoretical tests in determining the validity of restrictions to freedom of expression. There are two theoretical tests in determining the validity of restrictions to freedom of expression. These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be 'extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. The 'dangerous tendency' rule, on the other hand, may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. Supreme Court adheres to the "clear and present danger" test. Unquestionably, this Court adheres to the "clear and present danger" test. In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." In borderline conflict between freedom of expression and state action to ensure clean and free elections, the Court leans in favor of freedom. Even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties, when the end can be more narrowly achieved. The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant to add meaning to the equally vital right of suffrage. When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. Exit polls do not constitute clear and present danger of destroying the credibility and integrity of the electoral process. The Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. It contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral

process." Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. If at all, the outcome of one can only be indicative of the other. ABS-CBN Broadcasting Corp v. COMELEC January 28, 2000 FACTS: COMELEC issued a Resolution approving the issuance of a restraining order to stop ABS CBN or any other groups, its agents or representatives from conducting exit surveys. The Resolution was issued by the Comelec allegedly upon "information from a reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections and to make an exit survey of the vote during the elections for national officials particularly for President and Vice President, results of which shall be broadcasted immediately. The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized ABS-CBN to undertake the exit survey. Two days before the elections on May 11, 1998, the Court issued the Temporary Restraining Order prayed for by petitioner ABS-CBN. The Comelec was directed to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem. ISSUE: W/N the Comelec, in the exercise of its powers, can absolutely ban exit polls ABS-CBN: The holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech and of the press COMELEC: 1)The issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." 2)It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the losers in the election," which in turn may result in "violence and anarchy." 3)"exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution and relevant provisions of the Omnibus Election Code. It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case. 4) "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process."

SUPREME COURT: The COMELEC Resolution on exit polls ban is nullified and set aside. 1) Clear and present danger of destroying the integrity of electoral processes Speculative and Untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. 2) Overbroad The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.[45] There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices. 3) Violation of Ban Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people.## An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of

how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. Social Weather Stations Inc. vs. Commission on Elections [GR 147571, 5 May 2001] Second Division, Mendoza (J): 3 concur Facts: The Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features news-worthy items of information including election surveys. SWS and Kamahalan Publishing brought the action for prohibition with the Supreme Court to enjoin the Commission on Elections from enforcing 5.4 of RA 9006 (Fair Election Act), which provides that "Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be- fore an election." SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Kamahalan Publishing, on the other hand, states that it intends to publish election survey results up to the last day of the elections on 14 May 2001. They argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is n reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. Issue: Whether 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression,and the press. Held: 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and thepress. 5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of 15 days immediately preceding a national election and 7 days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to the Supreme Court bearing a heavy presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. There, thus a reversal of the normal presumption of validity that inheres in every legislation. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The

prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of 15 days immediately before a national election and 7 days immediately before a local election. In fine, 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. SWS VS. COMELEC freedom of speech ohibited the publication of surveys affecting national elections 15 days prior to the elections, and 7 days for surveys affecting local elections.

restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. On the other hand, COMELEC contends: that the provision is necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; and (2) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. SC: PROVISION INVALID. There is no showing that the following considerations outweigh freedom of expression: -minute pressure on voters,

junking" of weak and "losing" candidates by their parties, and -bawas" and

What test should then be employed to determine the constitutional validity of 5.4? The OBrien Test. (United States v. O 'Brien) Content-Based Government regulation is sufficiently justified: [1] if it is within the constitutional power of the Government;

[2] if it furthers an important or substantial compelling governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest. Here, the 3RD CRITERION WAS NOT MET. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Also, the 4th CRITERION WAS NOT MET. It fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of lastminute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Under the Administrative Code of 1987, the COMELEC is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Also, , contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. .. We hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. RUBIN, SECRETARY OF THE TREASURY v. COORS BREWING CO. Because 5(e)(2) of the Federal Alcohol Administration Act (FAAA or Act) prohibits beer labels from displaying alcohol content, the federal Bureau of Alcohol, Tobacco and Firearms (BATF) rejected

respondent brewer's application for approval of proposed labels that disclosed such content. Respondent filed suit for relief on the ground that the relevant provisions of the Act violated the First Amendment's protection of commercial speech. The Government argued that the labeling ban was necessary to suppress the threat of "strength wars" among brewers, who, without the regulation, would seek to compete in the marketplace based on the potency of their beer. The District Court invalidated the labeling ban, and the Court of Appeals affirmed. Although the latter court found that the Government's interest in suppressing "strength wars" was "substantial" under the test set out in Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, the court held that the ban violates the First Amendment because it fails to advance that interest in a direct and material way. Held: Section 5(e)(2) violates the First Amendment's protection of commercial speech. Pp. 3-15. (a) In scrutinizing a regulation of commercial speech that concerns lawful activity and is not misleading, a court must consider whether the governmental interest asserted to support the regulation is "substantial." If that is the case, the court must also determine whether the regulation directly advances the asserted interest and is no more extensive than is necessary to serve that interest. Central Hudson, supra, at 566. Here, respondent seeks to disclose only truthful, verifiable, and nonmisleading factual information concerning alcohol content. Pp. 3-6. (b) The interest in curbing "strength wars" is sufficiently "substantial" to satisfy Central Hudson. The Government has a significant interest in protecting the health, safety, and welfare of its citizens by preventing brewers from competing on the basis of alcohol strength, which could lead to greater alcoholism and its attendant social costs. Cf. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 341. There is no reason to think that strength wars, if they were to occur, would not produce the type of social harm that the Government hopes to prevent. However, the additional asserted interest in "facilitat[ing]" state efforts to regulate alcohol under the Twenty first Amendment is not sufficiently substantial to meet Central Hudson's requirement. Even if the Government possessed the authority to facilitate state powers, the Government has offered nothing to suggest that States are in need of federal assistance in this regard. United States v. Edge Broadcasting Co., ___ U. S. ___, ___, distinguished. Pp. 7-9. (c) Section 205(e)(2) fails Central Hudson's requirement that the measure directly advance the asserted government interest. The labeling ban cannot be said to advance the governmental interest in suppressing strength wars because other provisions of the FAAA and implementing regulations prevent 205(e)(2) from furthering that interest in a direct and material fashion. Although beer advertising would seem to constitute a more influential weapon in any strength war than labels, the BATF regulations governing such advertising prohibit statements of alcohol content only in States that affirmatively ban such advertisements. Government regulations also permit the identification of certain beers with high alcohol content as "malt liquors," and they require disclosure of content on the labels of wines and spirits. There is little chance that 205(e)(2) can directly and materially advance its aim, while other provisions of the same Act directly undermine and counteract its effects. Pp. 9-13. (d) Section 205(e)(2) is more extensive than necessary, since available alternatives to the labeling ban-including directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength, and limiting the ban to malt liquors, the segment of the beer market that allegedly is threatened with a strength war--would prove less intrusive to the First Amendment's protections for commercial speech. Pp. 14-15. 2 F. 3d 355, affirmed. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (No. 74-895) Syllabus Appellees, as consumers of prescription drugs, brought suit against the Virginia State Board of Pharmacy and its individual members, appellants herein, challenging the validity under the First and Fourteenth

Amendments of a Virginia statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. A three-judge District Court declared the statute void and enjoined appellants from enforcing it.

Held: 1. Any First Amendment protection enjoyed by advertisers seeking to disseminate prescription drug price information is also enjoyed, and thus may be asserted, by appellees as recipients of such information. Pp. 756-757. 2. "Commercial speech" is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid. Pp. 761-773. (a) That the advertiser's interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information. Pp. 762-765. (b) The ban on advertising prescription drug prices cannot be justified on the basis of the State's interest in maintaining the professionalism of its licensed pharmacists; the State is free to require whatever professional standards it wishes of its pharmacists, and may subsidize them or protect them from competition in other ways, but it may not do so by keeping the public in ignorance of the lawful terms that competing pharmacists are offering. Pp. 766-770. (c) Whatever may be the bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by [p749] the Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely. Pp. 770-771. (d) No claim is made that the prohibited prescription drug advertisements are false, misleading, or propose illegal transactions, and a State may not suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information's effect upon its disseminators and its recipients. Pp. 771-773.373 F.Supp. 683, affirmed. Virginia Board of Pharmacy v.s. Virginia Citizens Consumer Council FACTS OF THE CASE In the case of the Virginia Board of Pharmacy v.s. Virginia Citizens Consumer Council , the appellees (consumers of prescription drugs in the state of Virginia) filed a suit against the Virginia Board of Pharmacy for violation of the First and Fourteenth Amendment of an already existing Virginia statute stating that advertising or promoting prescription drug pricing information is considered unprofessional conduct by any licensed pharmacist. This case was an appeal from the United States District Court for the Eastern District of Virginia. The Virginia statute prohibited any licensed pharmacist from advertising any and all prescription drug price information to anyone because it would be considered unprofessional conduct by that licensed pharmacist. According to the court document on FindLaw, a three-judge District Court declared the statute void and enjoined appellants from enforcing it. Though, the case was brought in front of the Supreme Court and was argued on November 11, 1975. In the case, the plaintiffs argued that any licensed pharmacist providing prescription drug prices to anyone was in violation of both the First and Fourteenth Amendments. When the appeal was taken to the Supreme Court, the court ruled that the Virginia Board of Pharmacy and any licensed pharmacist under that board could not be subject to punishment for providing information on prescription drug prices. JUSTICE HARRY BLACKMUN said this is not mainly an issue of free-speech, but an issue of due process and dealt with prohibiting commercial regulation and the free flow of public information. BLACKMUN and his concurring peers stated that If there is a right to advertise, there is a reciprocal right to receive the advertising

The appellees then argued that the speech was not protected under the First Amendment because it was commercialized speech. But, BLACKMUN cited Breard v. Alexandria and said, Since the decision in Breard, however, the Court has never denied protection on the ground that the speech in issue was commercial speech. After determining that any pharmacist advertising price information only wanted to inform customers how much he or she would be charging them for a drug, BLACKMUN and the majority ruled that this commercialized speech is protected under the First Amendment. In closing, BLACKMUN and his concurring justices said that this commercial speech is protected under the First Amendment because it deals with the free flow of information that any consumer has the right to be interested in because it is a free market system. Also, the judges said the information being provided in no way is false, misleading or illegal and therefore cannot be prohibited. 2. LEGAL ISSUE The legal issue in this case is whether or not a pharmacist giving out prescription drug prices to consumers is a violation of the First and Fourteenth Amendments. In making their decision, the members of the Supreme Court looked at these specific circumstances. According to FindLaw: Any First Amendment protection enjoyed by advertisers seeking to disseminate prescription drug price information is also enjoyed, and thus may be asserted, by appellees as recipients of such information. Pp. 756-757. Commercial speech is not wholly outside the protection of the First and Fourteenth Amendments, and the Virginia statute is therefore invalid. Pp. 761-773. (a.) That the advertisers interest in a commercial advertisement is purely economic does not disqualify him from protection under the First and Fourteenth Amendments. Both the individual consumer and society in general may have strong interests in the free flow of commercial information. Pp. 762-765. (b.) The ban on advertising prescription drug prices cannot be justified on the basis of the States interest in maintaining the professionalism of its licensed pharmacists; the State is free to require whatever professional standards it wishes of its pharmacists, and may subsidize them or protect them from competition in other ways, but it may not do so by keeping the public in ignorance of the lawful terms that competing pharmacists are offering. Pp. 766-770. (c.) Whatever may be the bounds of time, place, and manner restrictions on commercial speech, they are plainly exceeded by [425 U.S. 748, 749] the Virginia statute, which singles out speech of a particular content and seeks to prevent its dissemination completely. Pp. 770-771. (d.) No claim is made that the prohibited prescription drug advertisements are false, misleading, or propose illegal transactions, and a State may not suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that informations effect upon its disseminators and its recipients. Pp. 771-773. 3. DECISION The Supreme Court ruled that the Virginia Board of Pharmacy (and all of its licensed pharmacists) are not prohibited from providing consumers with price information on prescription drugs. The First Amendment, *425 U.S. 748, 772+ as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely. 4. ANALYSIS

The big question here is whether or not a pharmacist providing price information on prescription drugs is considered commercial speech protected under the First Amendment. I work at a pharmacy and personally, I cannot understand why there would be a problem with a pharmacist telling a consumer how much a certain medication would cost. The pharmacist would not be giving out false, illegal or misleading information, he or she would simply just be providing a potential customer with some price information on a drug. The information is truthful and public to the customer and is therefore protected. And, taking HIPAA into account, no personal or private information is being given. Pharmaceutical and Health Care Association of the Philippines vs. Duque Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a corespondent since respondents issued the questioned RIRR in their capacity as officials of said executive agency.1Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured that nutrition and health claims are not permitted for breastmilk substitutes.In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said instrument provides that State Parties should take appropriate measures to diminish infant and child mortality, and ensure that all segments of society, specially parents and children, are informed of the advantages of breastfeeding. On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006. Issue: . Whether Administrative Order or the Revised Implementing Rules and Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional; Held: YES under Article 23, recommendations of the WHA do not come into force for members,in the same way that conventions or agreements under Article 19 and regulations under Article 21 come into force. Article 23 of the WHO Constitution reads: Article 23. The Health Assembly shall have authority to make recommendations to Members with respect to any matter within the competence of the Organization for an international rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it obligatory to comply with such rules Under the 1987 Constitution, international law can become part of the sphere of domestic law either By transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can be implemented by executive agencies without the need of a law enacted by the legislature Pharmaceutical and Health Care Association of the Philippines v Duque III Facts: Petition for certiorari seeking to nullify the Revised Implementing Rules and Regulations (RIRR) of E.O. 51 (Milk Code). Petitioner claims that the RIRR is not valid as it contains provisions that are not constitutional and go beyond what it is supposed to implement. Milk Code was issued by President Cory Aquino under the Freedom Constitution on Oct.1986. One of the preambular clauses of the Milk Code states that the law seeks to give effect to Art 11 of the Intl Code of Marketing and Breastmilk Substitutes(ICBMS), a code adopted by the World Health Assembly(WHA). From 1982-2006, The WHA also adopted severe resolutions to the effect that breastfeeding should be supported, hence, it should

be ensured that nutrition and health claims are not permitted for breastmilk substitutes. In 2006, the DOH issued the assailed RIRR. Issue: Sub-Issue: W/N the pertinent intl agreements entered into by the Phil are part of the law of the land and may be implemented by DOH through the RIRR. If yes, W/N the RIRR is in accord with intl agreements MAIN: W/N the DOH acted w/o or in excess of their jurisdiction, or with grave abuse of discretion amounting to lack of excess of jurisdiction and in violation of the Constitution by promulgating the RIRR. Held: Sub-issue: Yes for ICBMS. Under 1987 Consti, intl law can become domestic law by transformation (thru constitutional mechanism such as local legislation) or incorporation (mere constitutional declaration i.e treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by 2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had been transformed into domestic law through a local legislation such as the Milk Code. The Milk Code is almost a verbatim reproduction of ICBMS. No for WHA Resolutions. The Court ruled that DOH failed to establish that the provisions pertinent WHA resolutions are customary intl law that may be deemed part of the law of the land. For an intl rule to be considered as customary law, it must be established that such rule is being followed by states because they consider it as obligatory to comply with such rules (opinion juris). The WHO resolutions, although signed by most of the member states, were enforced or practiced by at least a majority of member states. Unlike the ICBMS whereby legislature enacted most of the provisions into the law via the Milk Code, the WHA Resolutions (specifically providing for exclusive breastfeeding from 0-6 months, breastfeeding up to 24 Months and absolutely prohibiting ads for breastmilk substitutes) have not been adopted as domestic law nor are they followed in our country as well. The Filipinos have the option of how to take care of their babies as they see fit. WHA Resolutions may be classified as SOFT LAW nonbinding norms, principles and practices that influence state behavior. Soft law is not part of intl law. Main issue: Yes. Some parts of the RIRR were not in consonance with the Milk Code such as Sec. 4(f) >advertising, promotions of formula are prohibited, Sec 11 -> prohibitions for advertising breastmilk substitutes intended for infants and young children uo to 24 months And Sec 46 -> sanctions for advertising . These provisions are declared null and void. The DOH and respondents are prohibited from implementing said provisions. Pharmaceutical and Health Care Association of the Philippines vs. Duque III(Austria-Martinez, October 9, 2007) Nature: Special Civil Action in the Supreme Court. Certiorari Petitioner: Pharmaceutical and Healthcare Association of the Philippines Respondents: DOH Sec. Francisco Duque III, DOH Undersecretaries Dr. Ethelyn Nieto,Dr. Margarita Galon, Atty. Alexander Padilla and Dr. Jade Del Mundo; and Asst.Secretaries Dr. Mario Villaverde, Dr. David Lozada and Dr. Nemesio Gako Facts: Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino on Oct.28, 1986 by virtue of the legislative powers granted to her under the Freedom Constitution.

(1) One of the preambular clauses of TMC the law seeks to give effect to Article11 of the International Code of Marketing of Breastmilk Substituttes (ICMBS),a code adopted by the WHA (World Health Assembly) in 1981. -In 1990, the Philippine ratified the International Convention on the Rights of theChild. Art. 24 of the instrument mandates that States should take measure todiminish infant mortality and should ensure that all segments of society areinformed of the advantages of breastfeeding.-From 1982 2006, the WHA adopted several resolutions to the effect thatbreastfeeding should be supported, promoted and protected, hence, it should beensured that nutrition and health claims are not permitted for breastmilksubstitutes. -May 15, 2006 DOH issues the assailed RIRR (Revised Implementing Rules andRegulations of E.O. 51 or A.O. No. 2006-0012) which was to take effect on July 7,2006. The RIRR imposes a ban on all advertisements of breastmilk substitutes-June 28, 2006 Petitioner filed the present Petition for Certiorari and Prohibitionwith Prayer for the Issuance of a TRO or Writ of Preliminary injunction.-August 15, 2006 the Court issued a Resolution granting the TRO, enjoining therespondents from implementing the assailed RIRR.-Petitioner assails the RIRR for going beyond the provisions of TMC therebyamending and expanding the coverage of the said law. -DOH meanwhile contends that the RIRR implements not only TMC but also variousinternational instruments regarding infant and young child nutrition. They positthat the said international instruments are deemed part of the law of the land andtherefore may be implemented by the DOH in the RIRR. Issue: W/n the RIRR is unconstitutional? Sub-issue(s): W/n the RIRR is in accord with TMC? W/n pertinent internationalagreements entered into by the Philippines are part of the law of the land and may thusbe implemented through an RIRR, if so, is the RIRR in accord with such internationalagreements?Note: I focused on the parts on international law. The other matters (in case maamasks) are at the bottom of the digest. Held: No. However what may be implemented is the RIRR based on the Milk Codewhich in turn is based on the ICMBS as this is deemed part of the law of the land. Theother WHA Resolutions however cannot be imposed as they are not deemed part of thelaw of the land. Ratio: 1.Are the international instruments referred to by the respondents part of the law of the land?The various international instruments invoked by respondents are:(1)The UN Conventions on the Rights of the Child (2) The International Convenant on Economic, Social, and Cultural Rights(3)Convention on the Elimination of All Forms of Discrimination Against Women - These instruments only provide general terms of the steps that States must taketo prevent child mortality. Hence, they do not have anything about the use andmarketing of breastmilk substitutes - The ICMBS and other WHA Resolutions however, are the international instrumentswhich have specific provisions on breastmilk substitutes-Under the 1987 Constitution, international law can become part of domestic lawin 2 ways:(1)Transformation an international law is transformed into a domestic lawthrough a constitutional mechanism such as local legislation wherein no treaty or international agreement shall bevalid.. unless concurred by at least 2/3 of Senate

2/3 vote.

 Therefore, it is not the ICMBS per se that has the force of law butits TMC. O While TMC is almost a verbatim reproduction of the ICMBS, it didnot adopt the latters provision on the absolute prohibition onadvertising of products within the scope of the ICMBS. Insteadthe MC provides that advertising promotion or other marketingmaterials may be allowed if such materials are approved by acommittee. (2) Incorporation by mere constitutional declaration, international law isdeemed to have the force of domestic law The Philippines adopts generallyaccepted principles of international law as part of the law of the land

elements: 1.) Established, widespread, and consistent practice on part of the state 2.) Opinion juris sive necessitates (opinion as to law or necessity.

law which are binding on all states,valid through all kinds of human societies, and basic to legal systemsgenerally

factors:1.)Material factor how states behave The consistency and the generality of the practice2.)Psychological or subjective factor why they behave the way theydo Once state practice has been established, now determine whythey behave they do. Is it ouor of courtesy or opinio juris (thebelief that a certain type of behavior is obligatory)

incorporated into our domestic system2.Since the WHA Resolutions have not been embodied in any local legislation, havethey attained the status of customary law and hence part of our law of the land?The World Health Organization (WHO) is one of the international specializedagencies of the UN.According to the WHO Constitution, its the WHA which determines the policies of the WHO, the former also has the power to adopt regulations concerningadvertising and labeling of pharmaceutical and similar products and to makerecommendations to members on any matter within the Organizationscompetence -Note that the legal effect of a regulation as opposed to recommendation is quitedifferent (1)Regulations which are duly adopted by the WHA are binding on memberstates(2)On the other hand, recommendations of the WHA do not come into force for itsmembers unlike regulations. Rather, they carry moral and political weight asthey constitute the judgment on a health issue of the collective membershipof the highest body in the field of health.-The WHA resolution adopting the ICMBS and the subsequent WHA resolutionsurging states to implement the ICMBS are merely recommendatory and legallynon-binding.-Hence, unlike the ICMBS which has become TMC through legislative enactment,the subsequent WHA Resolutions, which provide for exclusive breastfeeding andprohibition on advertisements and promotions of breastmilk have not beenadopted as domestic law.-WHA Resolutions have been viewed to constitute soft law or non-binding norms,which influence state behavior. Soft law has been noted to be a rapid means of norm creation, in order to reflect and respond to the

changing needs anddemands of constituents (of the UN.)-As previously discussed, for an international rule to be considered customary law,it must be established that such rule is followed by states because it is consideredobligatory (opinio juris).-In the case at bar, respondents have not presented any evidence to prove thatthe WHA Resolutions are in fact enforced or practice by member states. Further,they failed to establish that provisions of pertinent WHA Resolutions arecustomary international law that may be deemed part of law of the land.-Hence, legislation is necessary to transform the WHA resolutions into domesticlaw. They cannot thus be implemented by executive agencies without the need of a law to be enacted by legislature.On other issues:W/n the petitioner is the real party in interest? Yes. -An association has standing to file suit for its workers despite its lack of directinterest of its members are affected by the action. An organization has standingto assert the concerns of its constituents. (Exec Sec vs CA) -The Court has rules that an association has the legal personality to represent itsmembers because the results of the case will affect their vital interests. (PurokBagong Silang Association Inc. vs. Yuipco)-In the petitioners Amended Articles of Incorporation, it states that the associationis formed to represent directly or through approved representatives thepharmaceutical and health care industry before the Philippine Government andany of its agencies, the medical professions and the general public.Therefore, the petitioner, as an organization, has an interest in fulfilling its avowedpurpose of representing members who are part of the pharmaceutical and healthcare industry. Petitioner is duly authorized to bring to the attention of thegovernment agencies and courts any grievance suffered by its members whichare directly affected by the assailed RIRR.-The petitioner, whose legal identity is deemed fused with its members, should beconsidered as a legal party-in-interest which stands to be benefited or injured byany judgment in the case.W/n the DOH has the power to implement the WHA Resolutions under the RevisedAdministrative Code even in the absence of a domestic law? Only the provisions of theMilk Code. (as per the discussion above)-Section 3, Chapter 1, Title IX of the RAC of 1987 provides that the DOH shalldefine the national health policy and can issue orders and regulations concerningthe implementation of established health policies.-A.O. No 2005 -0014 which provides the national policy on infant and young childfeeding, does not declare that as part of its policy, the advertisement orpromotion of breastmilk substitutes should be absolutely prohibited. -Only the provisions of the Milk Code, but not those of the subsequent WHAResolutions, can be validly implemented by the DOH through the subject RIRR.W/n the provisions of the RIRR being in accordance with the Milk Code? Not all of them -Assailed provisions: [1] extending the coverage to young children; [2] imposingexclusive breastfeeding for infants from 0-6 months; [3] imposes an absolute banon advertising and promotion for breastmilk substitutes; [4] requiring additionallabeling requirements; [5] prohibits the dissemination of information on infantformula; [6] forbids milk manufacturers and distributors to extend assistance inresearch and continuing education Although the DOH has the power under theMilk Code to control information regarding breastmilk vis--vis breastmilksubstitutes, this power is not absolute because it has no power to impose anabsolute prohibition in the marketing, promotion and advertising of breastmilksubstitutes. Several provisions of the Milk Code attest to the fact that such powerto control information is not absolute.-Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code becausesuch provisions impose an absolute prohibition on advertising, promotion andmarketing of breastmilk substitutes, which is not provided for in the Milk Code.Section 46 is violative of the Milk Code because the DOH has exceeded itsauthority in imposing such fines or sanctions when the Milk Code does not do so.Other assailed provisions are in accordance with the Milk Code.W/n Section 13 of the RIRR providing a sufficient standard? Yes. -Questioned provision, in addition to Section 26 of Rule VII provide labelingrequirements for breastmilk substitutes

-The provisions in question provide reasonable means of enforcing relatedprovisions in the Milk Code.W/n Section 57 of the RIRR repeals existing laws?-Section in question only repeals orders, issuances and rules and regulations, notlaws. The provision is valid as it is within the DOHs rule-making power.-An administrative agency has quasi-legislative or rule-making power. However,such power is limited to making rules and regulation subjected to the boundariesset by the granting statute and the Constitution. The power is also subject to thedoctrine of non-delegability and separability of powers. The power, whichincludes amending, revising, altering or repealing, is granted to allow forflexibility in the implementation of the laws.W/n On Section 4, 5(w), 11, 22, 32, 47 and 52 violates the due process clause of theConstitution (Article III Section 1)? Despite the fact that the present Constitution enshrines free enterprise as apolicy, it nonetheless reserves to the government the power to intervenewhenever necessary to promote the general welfare free enterprise does notcall for the removal of protective regulations. It must be clearly explained and proven by competent evidence just exactly how such protective regulation would result in the restraint of trade .-Section 4 proscription of milk manufacturers participation in any policymakingbody; Section 22 classes and seminars for women and children; Section 32 giving of assistance, support and logistics or training; Section 52 giving of donations -In the instant case, petitioner failed to show how the aforementioned sectionshamper the trade of breastmilk substitutes. They also failed to establish thatthese activities are essential and indispensable to their trade. Disposition: The Petition is Partially Granted. Only sections 4(f), 11 and 46 of A.O. 2006-0014 are declared null and void for being ultra vires. The TRO islifted insofar as the rest of the provisions of A.O. 2006-0012 is concerned. G.R. No. L-16027 May 30, 1962 LUMEN POLICARPIO, plaintiff-appellant, vs. THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN, MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees. ISSUE: Whether or not the defendant is guilty of having published libelous/defamatory articles? FACTS: Policarpio was executive secretary of UNESCO Natl Commission. As such, she had filed charges against Herminia Reyes, one of her subordinates in the Commission, & caused the latter to be separated from the service. Reyes, in turn, filed counter-charges which were referred for investigation. Pending completion, Reyes filed a complaint against Policarpio for alleged malversation of public funds & another complaint for estafa thru falsification of public documents. Policarpio filed a libel suit to Manila Times Publishing Co. for publishing two defamatory, libelous and false articles/news items in Saturday Mirror of August 11, 1956 and in the Daily Mirror of August 13, 1956. Saturday Mirror (Aug 11, 1956): WOMAN OFFICIAL SUED PCAC RAPS L. POLICARPIO ON FRAUDS Unesco Official Head Accused on Supplies, Funds Use by Colleague Daily Mirror (Aug 13, 1956): PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO Alba Probes Administrative Phase of Fraud Charges Against Unesco Woman Official; Fiscal Sets Prelim Quiz of Criminal Suit on Aug 22 The articles contain news on Reyes charges against Policarpio for having malversed public property and of having fraudulently sought reimbursement of supposed official expenses. It was said that Policarpio used several sheets of government stencils for her private and personal use. The other charge refers to the supposed reimbursements she had made for a trip to Quezon and Pangasinan. Reyes complaint alleged that Policarpio had asked for refund of expenses for use of her car when she had

actually made the trip aboard an army plane. Policarpio was said to be absent from the Bayambang conference for which she also sought a refund of expenses. CFI dismissed the complaint on the ground that the plaintiff had not proven that defendants had acted maliciously in publishing the articles, although portions thereof were inaccurate or false. RULING OF THE CASE: The headline of the Aug 11 article was given prominence with a 6- column (about 11 inches) banner headline of 1-inch types. Its subtitle PCAC raps Policarpio on fraud printed in bold 1 cm type is not true. Also, the statement in the 1st paragraph of the article, to the effect that plaintiff was charged with malversation & estafa bythe Presl Complaint & Action Commission (PCAC) is not true, the complaints for said offenses having been filed by Reyes. Neither is it true that said criminal action was initiated as a result of current administrative investigation. PLAINTIFF maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba had shown that plaintiff was guilty and that, as a consequence, PCAC had filed the corresponding complaints w/ the fiscals office. She also said that the article did not mention that fact that the number of stencils involved in the charge was only 18 or 20; that the sum allegedly misappropriated by her was only P54, and that the falsification imputed to her was said to have been committed by claiming that certain expenses for which she had sought reimbursement were incurred in trips during the period from July 1 Sept 30 1955, although the trips actually were made from Jul 8- Aug 31, 1955. By omitting these details, plaintiff avers that the Aug 11 article had the effect of conveying the idea that the offenses imputed to her were more serious than they really were. DEFENDANTS contend that though the complaints were filed, not by the PCAC but by Reyes, this inaccuracy is insignificant & immaterial to the case for the fact is that said complaints were filed. As regards the number of sheets & the nature of the falsification charged, they argue that these details do not affect the truthfulness of the article as a whole. Besides, defendants had no means of knowing such details. SC: Prior to Aug 11, Col. Alba had already taken the testimony of witnesses; hence, defendants could have ascertained the details had they wanted to. The number of stencil sheets used was actually mentioned in the Aug 13 article. Moreover, the penalty for estafa /embezzlement depends partly upon the amount of the damage caused to the offended party. Hence, the amount or value of the property embezzled is material to said offense. It is obvious that the filing of criminal complaints by another agencyof the Govt, like the PCAC, particularly after an investigation conducted by the same, imparts the ideal that the probability of guilt is greater than when the complaints are filed by a private individual, especially when the latter is a former subordinate of the alleged offender, who was responsible for the dismissal of the complainant from her employment. Newspapers must enjoy a certain degrees 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. Newspapers 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. 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. Art. 354, RPC provides: Every defamatory imputation is presumed to be malicious even if it be true, if no good intention & justifiable motive for making it is shown, except, A fair and true report, made in good faith, w/o any comments or remarks.

 In the case at bar, aside from containing information derogatory to the plaintiff, the Aug 11 article presented her in a worse predicament than that in which she, in fact was. Said article was not a fair and true report of the proceedings therein alluded to. What is more, its sub-title PCAC raps Policarpio on fraud is a comment or remark, besides being false. Accordingly, the defamatory imputations contained in said article are presumed to be malicious In falsely stating that the complaints were filed by PCAC, either defendants knew the truth or they did not. If they did, then the publication would actually be malicious. I f they did not, or if they acted under a misapprehension of the facts, they were guilty of negligence in making said statement. We note that the Aug 13 article rectified a major inaccuracy in the 1st article, by stating that neither Col. Alba nor the PCAC had filed the complaints. It likewise indicated the number of stencil sheets involved. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the Aug 11 article, although it should mitigate it. HELD: Decision reversed. Defendants ordered to pay plaintiff moral damages, attys fees plus cost. Lopez vs. Court of Appeals [GR L-26549, 31 July 1970] First Division, Fernando (J): 4 concur, 2 concur in result, 1 dissents in separate opinion Facts: In the early part of January 1956, there appeared on the front page of The Manila Chronicle, of which Eugenio Lopez was the publisher, as well as on other dailies, a news story of a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz by name, sending a distress signal to a passing United States Airforce plane which in turn relayed the message to Manila. He was not ignored, 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 1995. Losing no time, the Philippines defense establishment rushed to the island a platoon of scout rangers led by Major Wilfredo Encarnacion. Upon arriving at the reported killer menaced Babuyan Claro, however, Major Encarnacion and his men found, instead of the alleged killers, a man, the same Fidel Cruz, who merely wanted transportation home to Manila. In view of this finding, Major Wilfredo Encarnacion branded as a "hoax," to use his own descriptive word, the report of Fidel Cruz. That was the term employed by the other newspapers when referring to the incident. This Week Magazine of the Manila Chronicle, then edited by Juan T. Gatbonton, devoted a pictorial article to it in its issue of 15 January 1956. Mention was made that while Fidel Cruz story turned out to he false, if brought to light the misery of the people living in that place, with almost everybody sick, only two individuals able to read and write, foodand clothing being scarce. Then in the 29 January 1956 issue of This Week Magazine, the "January News Quiz" included an item on the central figure in what was known as the Calayan Hoax, who nevertheless did the country a good turn by calling the government's attention to that forsaken and desolate corner of the Republic. Earlier in its Special Year End Quiz appearing in its issue of 18 January 1956, reference was made to a health inspector who suddenly felt "lonely" in his isolated post, cooked up a story about a murderer running loose on the island of Calayan so that he could be ferried back to civilization. He was given the appellation of "Hoax of the Year." The magazine on both occasions carried photographs of the person purporting to be Fidel Cruz. Unfortunately, the pictures that were published on both occasions were that of Fidel G. Cruz, a businessman-contractor from Santa Maria, Bulacan. It turned out that the photographs of Cruz and that of Fidel Cruz, sanitary inspector, were on file, in the library of the Manila Chronicle in accordance with the standard procedure observed in other newspaper offices, but when the news quiz format was prepared, the two photographs were inadvertently switched. As soon, however, as the inadvertent error was brought to the attention of Lopez and Gatbonton, the following correction was immediately published in This Week Magazine on January 27, 1957: "While we were rushing to meet the deadline for January 13th issue of This Week, we inadvertently published the picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in 'Our Own Who's Who feature in the Year End Quiz' of This Week in lieu of the health inspector Fidel Cruz, who was connected with a story about a murderer running loose on Calayan Island. We here express our profound regrets that; such an error occurred." Together with the foregoing correction, Lopez and Gatbonton published the picture of Fidel Cruz; the photographs and the correction moreover were

enclosed by four lines, the type used was bolder than ordinary, and the item was placed in a conspicuous place in order to call the attention of the readers to such amends being made. The businessman Fidel G. Cruz sued Lopez and Gatbonton in the Court of First Instance of Manila for therecovery of damages alleging the defamatory character of the above publication of his picture. After trial duly had, he was awarded P5,000 as actual damages, another P5,000 as moral damages, and P1,000 for attorney's fees. That judgment was affirmed on appeal to the appellate Court. Lopez and Gatbonton filed the petition for certiorari. Issue: Whether the claim of freedom of the press negates Lopez and Gatbontons liability arising from libel. Held: A libel was defined as a "malicious defamation, expressed either in writing, printing, or by signs orpictures, or the like, tending to blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural defects of one who is alive, and thereby expose him to publichatred, contempt, or ridicule." There was an express provision in such legislation for a tort or a quasi-delict action arising from libel. There is reinforcement to such a view in the new Civil Code providing for the recovery of moral damages for libel, slander or any other form of defamation. According to the standard treatise of Newell on Slander and Libel: "Publication of a person's photograph in connection with an article libelous of a third person, is a libel on the person whose picture is published, where the acts set out in the article are imputed to such person." Why libel law has both a criminal and a civil aspect is explained by Hale in his Law of the Press thus: "On the one hand, libeling a person results in depriving him of his good reputation. Since reputation is a thing; of value, truly rather to be chosen than great riches, an impairment of it is a personal wrong. To redress this personal wrong money damages are awarded to the injured person. On the other hand, the publication of defamatory statements tends strongly to induce breach of the peace by the person defamed, and hence is of peculiar moment to the state as the guardian of the public peace. Viewed from this angle, libel is a crime, and as such subjects the offender to a fine or imprisonment." No inroads on press freedom should be allowed in the guise of punitive action visited in what otherwise could be characterized as libel whether in the form of printed words or a defamatory imputation resulting from the publication of Cruz's picture with the offensive caption as in complained of. This is not to deny that the party responsible invites the institution either of a criminal prosecution or a civil suit. It must be admitted that what reputation. This is merely to underscore the primacy that freedom of the press enjoys. It ranks rather high in the hierarchy of legal values. If the cases mean anything at all then, to emphasize what has so clearly emerged, they call for the utmost care on the part of the judiciary to assure that in safeguarding the interest of the party allegedly offended, a realistic account of the obligation of a news media to disseminate information of a public character and to comment thereon as well as the conditions attendant on the business of publishing cannot be ignored. However, the correction promptly made by Lopez and Gatbonton would thus call for a reduction in the damages awarded. It should be noted that there was no proof of any actual pecuniary loss arising from the above publication. It is worthwhile to recall what Justice Malcolm referred to as the tolerant attitude on the part of appellate courts on this score, the usual practice being "more likely to reduce damages for libel than to increase them." LOPEZ VS. SANDIGANBAYAN [34 SCRA 116; L-26549; 31 JUL 1970] 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 Airforce 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. New York Times vs. Sullivan [376 US 254, 9 March 1964] Brennan (J) Facts: L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He was "Commissioner of Public Affairs and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales." He brought the civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. Sullivan's complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on 29 March 1960. Entitled "Heed Their Rising Voices," the advertisement began by stating that "As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It went on to charge that "in their efforts to

uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom." Succeeding paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, "the struggle for the right-to-vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery. The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal," appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and the officers of the Committee were listed. Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of Sullivan's claim of libel. Third paragraph read as "In Montgomery, Alabama, after students sang `My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, andtruckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission," while the sixth paragraph reads "Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times -for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with `perjury' - a felony under which they could imprison him for ten years." A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. Background on Alabama laws on the matter: 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 trial court stated that the standard was met if the words are such as to "injure him in his public office, or impute misconduct tohim in his office, or want of official integrity, or want of fidelity to a public trust." The jury must find that the words were published "of and concerning" the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once "libel per se" has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. His privilege of "fair comment" for expressions of opinion depends on the truth of the facts upon which the comment is based. Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Further, Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. Issue: Whether printed allegations or criticism against official conduct should be supported by actual facts, to free persons from liabilities attendant to libel. Held: The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by the Court's decisions. The constitutional safeguard was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful

means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. It is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. Against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth - whether administered by judges, juries, or administrative officials and especially one that puts the burden of proving truth on the speaker. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the "breathing space" that they "need to survive." Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, the Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. This is true even though the utterance contains "half-truths" and "misinformation." Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," surely the same must be true of other government officials, such as elected city commissioners. Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs thatthe alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. 403 U.S. 29 Rosenbloom v. Metromedia (No. 66) Respondent's radio station, which broadcast news reports every half hour, broadcast news stories of petitioner'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's name, but used the terms "smut literature racket" and "girlie-book peddlers." Following petitioner's acquittal of criminal obscenity charges, he filed this diversity action in District Court seeking damages under Pennsylvania's libel law. The jury found for petitioner and awarded $25,000 in general damages; and $725,000 in punitive damages, which was reduced by the court on remittitur to $250,000. The Court of Appeals reversed, holding that the New York Times Co. v. Sullivan, 376 U.S. 254, standard applied, and "the fact that plaintiff was not a public figure cannot be accorded decisive significance." Held: The judgment is affirmed. Pp. 40-62.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, concluded that the New York Times standard of knowing or reckless falsity applies in a state civil libel action brought by a private individual for a defamatory falsehood uttered in a radio news broadcast about the individual's involvement in an event of public or general interest. Pp. 40-57. MR. JUSTICE BLACK concluded that the First Amendment protects the news media from libel judgments even when statements are made with knowledge that they are false. P. 57. MR. JUSTICE WHITE concluded that, in the absence of actual malice as defined in New York Times, supra, the First Amendment gives the news media a privilege to report and comment upon the official actions of public servants in full detail, without sparing from public view the reputation or privacy of an individual involved in or affected by any official action. Pp. 59-62. [p30] BRENNAN, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J., and BLACKMUN, J., joined. BLACK, J., post, p. 57, and WHITE, J., post, p. 57, filed opinions concurring in the judgment. HARLAN, J., filed a dissenting opinion, post, p. 62. MARSHALL, J., filed a dissenting opinion in which STEWART, J., joined, post, p. 78. DOUGLAS, J., took no part in the consideration or decision of this case. Rosenbloom vs. Metromedia Inc. The judicial travails in defamation cases took the United States Supreme Court further. In New York Times versus Sullivan, the actual malice standard was galvanized as the applicable rule in defamation cases involving public officials in relation to their ofifical conduct. In the same year, the U.S. Supreme Court applied the actual malice doctrine in criminal cases in Garrison vs. Louisiana. In 1967, the actual malice doctrine was held applicable to public figures, and not just public officials in a divided court in Curtis Publishing Co. vs. Butts. The next case the U.S. Supreme ruled upon was a case involving plainitffs who were neither public officials nor public figures, but private individuals. There was a seeming trend to provide greater accomodations to press freedom as the Supreme Court introduced a new standard, which is the public interest standard. In the case of Rosenbloom vs. Metromedia Inc. (1971) the Supreme Court applied the actual malice standard regardless of the status of the plainitff, as long as the matter involved was one of public interest. This became a highly controversial case, in view of the very wide latitude accorded to the press in defamation cases. But more significantly, the Rosenbloom case in the United States would be relevant to later defamation cases decided by the Philippine Supreme Court, which I will discuss later. See below my digest of this important (significant to Philippine defamation laws) case.

Rosenbloom v Metro Media, Inc. 403 U.S. 20 June 7 1971 In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. Respondent Metromediaradio station, which broadcast news reports every half hour, broadcast news stories of petitioner Rosenblooms 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 Rosenblooms 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.

Gertz v. Robert Welch, Inc Brief Fact Summary. In 1968, a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state prosecuted Nuccio and obtained a conviction for murder. The Nelson family retained the Petitioner, Gertz (Petitioner), to represent them in civil litigation against Nuccio. Synopsis of Rule of Law. A private defamation plaintiff who establishes liability under a less demanding standard than that stated by [New York Times v. Sullivan] may recover only such damages as are sufficient to compensate him for actual injury. Facts. In 1969, the Respondent, Robert Welch, Inc. (Respondent), publisher of American Opinion, a monthly outlet for the views of the John Birch Society, ran an article in which it accused the Petitioner of being the architect of a frame-up of Nuccio. The article stated that the Petitioner had a criminal record and a long history of communist affiliation. The Petitioner filed the instant case for libel and, after trial, the jury returned a verdict in his favor in the amount of $50,000. The trial court, nevertheless, entered Judgment N.O.V., concluding that the New York Times v. Sullivan standard applied to any discussion of a public issue. The Court of Appeals affirmed. Issue. Whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements? Held. The New York Times rule defines the level of constitutional protection appropriate to the context of defamation of a public person. However, the state interest in compensating injury to the reputation of private individuals requires that a different rule should apply with respect to them. The New York Times standard is inapplicable to this case and the trial court erred in entering judgment for the Respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. Dissent. Dissenting opinions were offered by Justices William Douglas (J. Douglas), William Brennan (J. Brennan) and Byron White (J. White) .

J. Douglas: No accommodation of First Amendment constitutional freedoms can be proper, except those made by the Framers of the United States Constitution (Constitution), themselves. J. Brennan: It is a legal fiction that public figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept their lives from public view. J. White: The Supreme Court of the United States (Supreme Court) should not be concerned with protection of the communications industry, at a cost of depriving ordinary citizens of meaningful redress against their defamers. Discussion. The majority based its decision upon the distinction between a public official, subject to the New York Times decision and a private individual. The majority found that private individuals require a greater level of protection because they are more vulnerable to injury. However, while private individuals deserve more protection, because the standard for recovery is less than was established in New York Times, there may only be recovery for damages that are sufficient to compensate him for actual injuries. This standard was fashioned by the Supreme Court in this case in order to prevent juries from ad hoc punishment of unpopular opinion rather than compensating private individuals for actual injury sustained. 418 U.S. 323 Gertz v. Robert Welch, Inc. (No. 72-617) A Chicago policeman named Nuccio was convicted of murder. The victim's family retained petitioner, a reputable attorney, to represent them in civil litigation against Nuccio. An article appearing in respondent's magazine alleged that Nuccio's murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that petitioner had arranged Nuccio's "frameup," implied that petitioner had a criminal record, and labeled him a "Communist-fronter." Petitioner brought this diversity libel action against respondent. After the jury returned a verdict for petitioner, the District Court decided that the standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, which bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, should apply to this suit. The court concluded that that standard protects media discussion of a public issue without regard to whether the person defamed is a public official as in New York Times Co. v. Sullivan, supra, or a public figure, as in Curtis Publishing Co. v. Butts, 388 U.S. 130. The court found that petitioner had failed to prove knowledge of falsity or reckless disregard for the truth, and therefore entered judgment n.o.v. for respondent. The Court of Appeals affirmed. Held: 1. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest. Pp. 339348. (a) Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating [p324] injury to the reputation of private individuals is therefore greater than for public officials and public figures. Pp. 343-345. (b) To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. Pp. 345-346.

(c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. Pp. 347-348. 2. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. Pp. 348-350. 3. Petitioner was neither a public official nor a public figure. Pp. 351-352. (a) Neither petitioner's past service on certain city committees nor his appearance as an attorney at the coroner's inquest into the death of the murder victim made him a public official. P. 351. (b) Petitioner was also not a public figure. Absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society, an individual should not be deemed a public figure for all aspects of his life. Rather, the public figure question should be determined by reference to the individual's participation in the particular controversy giving rise to the defamation. Petitioner's role in the Nuccio affair did not make him a public figure. Pp. 351-352. POWELL, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 353. BURGER, C.J., post, p. 354, DOUGLAS, J., post, p. 355, BRENNAN, J., post, p. 361, and WHITE, J., post, p. 369, filed dissenting opinions. [p325] Hustler Magazine v. Falwell Brief Fact Summary. After Hustler Magazine and Larry Flynt (Petitioners) published an advertisement, depicting Jerry Falwell (Respondent) as having his first time in an outhouse with his month, the reverend brought suit based on invasion of privacy, libel and intentional infliction of emotional distress. Synopsis of Rule of Law. When an advertisement parodying a public figure depicts facts which no reasonable person could take as true, that figure cannot prevail under a theory of emotional distress. Facts. The November 1983 issue of Hustler Magazine featured a parody of an advertisement for Campari Liqueur that had the name and picture of Respondent, and was entitled Jerry Falwell talks about his first time. The parody was designed to mimic other Campari ads, which pointed to the idea of the first time someone tasted Campari Liqueur. The parody depicted Respondents first time as a drunken, incestuous encounter with his mother in an outhouse. Respondent brought suit against Petitioners, alleging invasion of privacy, libel and intentional infliction of emotional distress. The district court and the United States Court of Appeals for the Fourth Circuit found for Petitioner on the defamation and invasion of privacy claims, on the basis that no reasonable person would consider the parody as true. The same courts held for Respondent on the issue of intentional infliction of emotional distress. The Supreme Court of the United States granted certiorari. Issue. This case considers whether an award of damages for intentional infliction of emotional distress to the victim of a parody is consistent with the First Amendment freedom of the press. Held. Reversed. * The Court found that to uphold the judgment of the lower courts would affect all political satire. Public officials and public figures were held unable to recover in emotional distress, when they could not prove that the publication was made knowingly, with actual malice. A parody, while admittedly in bad taste, is not considered malicious.

Discussion. The important rule to understand here is how the courts decision turned on Respondents status. If Respondent had been a private individual, arguably, his right of privacy would have allowed him to recover for emotional distress. Because Respondent was a public figure, he could not prevail in defamation, nor could he claim emotional distress. Hustler Magazine, Inc. v. Falwell Summary of Case Facts A Hustler Magazine story featured noted fundamentalist minister and political leader Jerry Falwell in a mock campaign advertisement. The advertisement claimed that Falwell had a drunken, incestuous relationship with his own mother in an outhouse. The mock advertisement was featured in the magazines table of contents as Fiction; Ad and Personality Parody, and contained small print at the bottom of the ad stating, Ad parody not to be taken seriously. Falwell sued Hustler for libel, invasion of privacy, and intentional infliction of emotional distress. Issue Does Freedom of Speech guaranteed by the First Amendment offer protection to the making of offensive statements about public figures, even if it could result in causing said public figure emotional distress? Holding and Law Yes. The court unanimously held that public figures such as Falwell could not recover for intentional infliction of emotional distress unless they could demonstrate that the offending publication made a false statement of fact with actual malice (false statements of fact made in knowing or reckless disregard for the truth). The court mentioned the importance of protecting satire and parody as speech, as it had a long-standing history in this country and was intended to be protected by the Founding Fathers. The court opined that the interest of protecting free speech far outweighed the states interest in protecting public figures from offensive speech, provided that offensive speech could not be construed to be stating actual facts. HUSTLER MAGAZINE v. FALWELL, 485 U.S. 46 (1988) Respondent, a nationally known minister and commentator on politics and public affairs, filed a diversity action in Federal District Court against petitioners, a nationally circulated magazine and its publisher, to recover damages for, inter alia, libel and intentional infliction of emotional distress arising from the publication of an advertisement "parody" which, among other things, portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse. The jury found against respondent on the libel claim, specifically finding that the parody could not "reasonably be understood as describing actual facts . . . or events," but ruled in his favor on the emotional distress claim, stating that he should be awarded compensatory and punitive damages. The Court of Appeals affirmed, rejecting petitioners' contention that the "actual malice" standard of New York Times Co. v. Sullivan, 376 U.S. 254 , must be met before respondent can recover for emotional distress. Rejecting as irrelevant the contention that, because the jury found that the parody did not describe actual facts, the ad was an opinion protected by the First Amendment to the Federal Constitution, the court ruled that the issue was whether the ad's publication was sufficiently outrageous to constitute intentional infliction of emotional distress. Held: In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i. e., with knowledge that the statement was

false or with reckless disregard as to whether or not it was true. The State's interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a "public figure" for First Amendment purposes, and the lower courts' finding that the ad parody was not reasonably believable must be [485 U.S. 46, 47] accepted. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression, and cannot, consistently with the First Amendment, form a basis for the award of damages for conduct such as that involved here. Pp. 50-57. 797 F.2d 1270, reversed. In Re: Emiliano P. Jurado (243 SCRA 299) Facts: Emiliano P. Jurado, a lawyer and journalist who writes in a newspaper of general circulation wrote about alleged improprieties and irregularities in the judiciary over several months. What was particularly given attention by the Supreme Court was his column entitled, "Who will judge the Justices?" that was referring to a report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong, and that luxurious hotel accommodations and all their other expenses were paid by a public utility firm and that the trip was arranged by the travel agency patronized by this public utility firm. This column was made amidst rumors that a Supreme Court decision favorable to the public utility firm appears to have been authored by a lawyer of the public utility firm. The Chief Justice issued an administrative order creating an ad hoc committee to investigate the said reports of corruptionin the judiciary. A letter affidavit was also received from the public utility, denying the allegations in Jurado's column. The Supreme Court then issued a resolution ordering that the matter dealt with in the letter and affidavit of the public utility company be docketed and acted upon as an official Court proceeding for the determination of whether or not the allegations made by Jurado are true. Issue: Whether or not the article written by Jurado constitute contempt of court. Held: Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy and the injury that he might cause to the name and reputation of those of whom he wrote. They constitute contempt of court, directly tending as they do to degrade or abase the administration of justice and the judges engaged in thatfunction. The Court declares Atty. Jurado guilty of contempt of court and sentences him to pay a fine of one thousand pesos (P1,000.00) The court underscores the importance of both the constitutional guarantee of free speech and the reality that there are equally important public interests which need on occasion to be balanced against and accommodated with one and the other. One such public interest is in the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. Borjal vs. Court of Appeals [GR 126466, 14 January 1999] Second Division, Bellosillo (J): 3 concur, 1 concurs in result Facts: Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed, Borjal was its President while Soliven was (and still is) Publisher and Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the column Jaywalker. Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business consultant and journalist by profession. In 1988 heSub-Committee on Industrial Policy. During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the House Sub-Committee

on Industrial Policy, those who attended agreed to organize the First National Conference on Land Transportation (FNCLT) to be participated in by the private sector in the transport industry and government agencies concerned in order to find ways and means to solve the transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill that would embody a longterm land transportation policy for presentation to Congress. The conference which, according to Wenceslao, was estimated to cost around P1,815,000.00 would be funded through solicitations from various sponsors such as government agencies, private organizations, transport firms, and individual delegates or participants. On 28 February 1989, at the organizational meeting of the FNCLT, Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the business community for the support of the conference. Between May and July 1989 a series of articles written by Borjal was published on different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an "organizer of a conference" without naming or identifying Wenceslao. Neither did it refer to the FNCLT as the conference therein mentioned. Wenceslao reacted to the articles. He sent a letter to The Philippine Star insisting that he was the "organizer" alluded to in Borjal's columns. In a subsequent letter to The Philippine Star, Wenceslao refuted the matters contained in Borjal's columns and openly challenged the latter by saying that he was prepared to relinquish his position in case it is found that he has misappropriated even one peso of FNCLT money, and, on the other hand, if he will be able to prove that Borjal has used his column as a "hammer" to get clients for his PR Firm, AA Borjal Associates, he should resign from the STAR and never again write a column. Thereafter, Wenceslao filed a complaint with the National Press Club (NPC) against Borjal for unethical conduct. He accused Borjal of using his column as a form of leverage to obtain contracts for his public relations firm, AA Borjal Associates. In turn, Borjal published a rejoinder to the challenge of Wenceslao not only to protect his name and honor but also to refute the claim that he was using his column for character assassination. Apparently not satisfied with his complaint with the NPC, Wenceslao filed a criminal case for libel against Borjal and Soliven, among others. However, in a Resolution dated 7 August1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of evidence. The dismissal was sustained by the Department of Justice and later by the Office of the President. On 31 October 1990, Wenceslao instituted against Borjal and Soliven a civil action for damages based on libel. After due consideration, the trial court decided in favor of Wenceslao and ordered Borjal and Soliven to indemnify Wenceslao P1,000,000.00 for actual and compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00 for attorney's fees, and to pay the costs of suit. The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. Borjal and Soliven filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of 12 September 1996. Hence, the petition for review. Issue: Whether Borjas intemperate or deprecatory utterances appear removes such speech from the protection of free speech, and opens him to liability for libel. Held: In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. Regrettably, these requisites have not been complied with in the present case. The questioned articles written by Borjal do not identify Wenceslao as the organizer of the conference. The first of the Jaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to indicate that Wenceslao was the person referred to therein. Surely, there were millions of "heroes" of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his 9 June 1989 column Borjal wrote about the "socalled First National Conference on Land Transportation whose principal organizers are not specified."

Neither did the FNCLT letterheads disclose the identity of the conference organizer since these contained only an enumeration of names whereWenceslao was described as Executive Director and Spokesman and not as a conference organizer. The printout and tentative program of the conference were devoid of any indication of Wenceslao as organizer. The printout which contained an article entitled "Who Organized the NCLT ?" did not even mention Wenceslao's name, while the tentative program only denominated Wenceslao as "Vice Chairman and Executive Director," and not as organizer. No less than Wenceslao himself admitted that the FNCLT had several organizers and that he was only a part of the organization. Significantly, Wenceslao himself entertained doubt that he was the person spoken of in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles. His letter to the editor published in the 4 June 1989 issue of The Philippine Star showed Wenceslao's uncertainty. Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from Borjal but from Wenceslao himself when he supplied the information through his 4 June 1989 letter to the editor. Had Wenceslao not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls. Further, indisputably, Borjal's questioned writings are not within the exceptions of Article 354 of The Revised Penal Code for they are neither private communications nor fair and true report without any comments or remarks. However this does not necessarily mean that they are not privileged. To be sure, the enumeration under Article 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. Publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels. The concept of privileged communications is implicit in the freedom of the press. Public policy, the welfare of society, and the orderly administration of government have demanded protection of public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action forlibel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of Borjal against Wenceslao shows that all these necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive Director of the FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence. These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself. Concededly, Borjal may have gone overboard in the language employed describing the "organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory the utterances appear to

be, the privilege is not to be defeated nor rendered inutile for. Debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials. Furthermore, while, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. The onus of proving actual malice then lies on Wenceslao. He must bring home to Borjal the existence of malice as the true motive of his conduct. Wenceslao failed to substantiate by preponderant evidence that Borjal was animated by a desire to inflict unjustifiable harm on his reputation, or that thearticles were written and published without good motives or justifiable ends. On the other hand, Borjal acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception. Every citizen has the right to enjoy a good name and reputation, but Borjal has not violated that right nor abused his press freedom. BORJAL VS. CA libel PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested freedoms of man, the issue of the right of free expression bestirs and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting terrain, explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes and bounds of its controversial domain. cles in the Philippine Star regarding alleged anomalous activities of a self-proclaimed hero of the EDSA. Without expressly referring to Wensceslao, the articles mentioned that the transportation conference was merely a money-making gimmick of the organizer. The conference allegedly solicits funds from the public. bills embodying long-term transportation policies of the government). he one being alluded to and thus sued for damages. was sufficiently identifiable. The court also ruled that the articles defamed Wency because Borjal described him as self-proclaimed hero, one with shady deals, thick face, and person with dubious ways. SC: NOT LIBELOUS. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient, that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication.10 Regrettably, these requisites have not been complied with in the case at bar. The questioned articles written by Borjal do not identify private respondent Wenceslao as the organizer of the conference. Surely, there were millions of "heroes" of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." Also, the organizers of the conference were not identified, the article only enumerated Wency as one of the Executive Director and Spokesman, and not as, a conference organizer. Even Wency himself entertained doubt that he was the person spoken of in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles. Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from Borjal but from Wency himself when he supplied the information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls. Art. 354 of The Revised Penal Code which state-

Art. 354. Requirement for publicity. - Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1) A private communication, made by any person to another in the performance of any legal, moral or social duty; and, 2) A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. A privileged communication may be either absolutely privileged, or qualifiedly privileged. Absolutely privileged communications are those which are not, actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory amputations are not actionable unless found to have been made without good intention or justifiable motive. To this genre belong "private communications" and "fair and true report without any comments or remarks." Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The Revised Penal Code for they are neither private communications nor fair and true report without any comments or remarks. However this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The concept of privileged communications is implicit in the freedom of the press. The doctrine of fair comment means that while in general every, discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must, either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferredfrom the facts. To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. There is no denying that the questioned articles dealt with matters of public interest.. The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence. These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself. While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. The onus of proving actual malice then lies on plaintiff, Wenceslao. He must bring home to the defendant, Borjal, the existence of malice as the true motive of his conduct. Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm.34 Malice is bad faith or bad motive.35 It is the essence of the crime of libel. Wency failed to substantiate that Borjal was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or justifiable ends. On the other hand, we find Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception. JACKS COMMENTS: fair comment is not derogatory as it expresses not a fact but an opinion. Fair comments do not attack the person, but only his policies. ARAFILES V PHILIPPINE JOURNALISTS

Facts: Petitioner Catalino Arafiles seeks a review of the CA decision which dismissed his complaint for damages against respondents publisher Philippine Journalists Inc, Manuel Villareal Jr, editor Max Buan Jr and reporter Romy Morales. Respondent Morales wrote a report that appeared on Peoples Journal Tonight, which related how Emelita Despuig, an employee of the National Institute of Atmospheric Sciences (NAIS) of PAG-ASA, lodged a complaint against petitioner, a NAIS director, for forcible abduction with rape and forcible abduction with attempted rape and the supposed details of the rape. About a year after the report was published, Arafiles instituted the complaint for damages, alleging that on account of the grossly malicious and overly sensationalized reporting in the news item, his reputation as a director of NAIS was injured, that he became the object of public contempt and ridicule as he was depicted as a sex-crazed stalker and serial rapist and that the news deferred his promotion. In their Answer,respondents prayed for the dismissal of the Complaint, they alleging that the news item, having been sourced from the Police Blotter which is an official public document and bolstered by a personal interview of the victim is therefore privileged and falls within the protective constitutional provision of freedom of the press . . . . , and by way of Compulsory Counterclaim, they prayed for the award of moral and exemplary damages plus attorneys fees. The Quezon City RTC ruled in favor of petitioner, but was later on reversed by CA, claiming that the petitioner was not able to prove by preponderance of evidence that (herein respondents) were motivated by a sinister intent to cause harm and injury to (herein petitioner). Issue: W/N the CA erred in holding that the publication of the news item was not attended with malice to thus free respondents of liability for damages Held: No. In actions for damages for libel, it is axiomatic that the published work alleged to contain libelous material must be examined and viewed as a whole. In order to ascertain the meaning of a published article, the whole of the article must be considered, each phrase must be construed in the light of the entire publication x x x The headlines of a newspaper must also be read in connection with the language which follows. The presentation of the news item subject of petitioners complaint may have been in a sensational manner, but it is not per se illegal. Respondents could of course have been more circumspect in their choice of words as the headline and first seven paragraphs of the news item give the impression that a certain director of the NIAS actually committed the crimes complained of by Emelita. The succeeding paragraphs (in which petitioner and complainant Emelita were eventually identified) sufficiently convey to the readers, however, that the narration of events was only an account of what Emelita had reported at the police headquarters. 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.

ARAFILES VS. PHIL. JOURNALISTS INC., et al. FACTS: About 2 a.m., while respondent Morales, a reporter of Peoples Journal Tonight, was at the Western Police District (WPD) Headquarters Emelita Despuig, an employee of the National Institute of Atmospheric Sciences (NIAS), lodged a complaint against petitioner, a NIAS director, for forcible abduction with rape and forcible abduction with attempted rape. Emelita executed a sworn affidavit which was later on written in the police blotter and perused by Morales. The latter interviewed Emelita. The following day, the article appeared in the headline of respondents newspaper which wrote, GOVT EXEC RAPES COED. About a year following the publication, petitioner instituted a complaint before the RTC against respondents for damages. Petitioner alleged that because of the article, his reputation was injured. Respondent answered that his write-up was protected by the constitution on freedom of the press. RTC ruled in favor of petitioner. ISSSUE: W/N the CA erred in holding that the publication of the news item was not attended with malice to thus free respondents of liability for damages. RULING: Petition denied. In actions for damages for libel, it is axiomatic that the published work alleged to contain libelous material must be examined and viewed as a whole. Respondents could of course have been more circumspect in their choice of words as the headline and first seven paragraphs of the news item give the impression that a certain director of the NIAS actually committed the crimes complained of by Emelita. The succeeding paragraphs sufficiently convey to the readers, however, that the narration of events was only an account of what Emelita had reported at the police headquarters. 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. CATALINO P. ARAFILES, Petitioner, vs. PHILIPPINE JOURNALISTS, INC., ROMY MORALES, MAX BUAN, JR., and MANUEL C. VILLAREAL, JR., Respondents March 25, 2004 FACTS: Petitioner, Catalino P. Arafiles, seek a review of the July 31, 2001 Decision of the Court of Appeals dismissing his complaint for damages against respondents Philippine Journalists, Inc., Romy Morales, Max Buan, Jr., Manuel C. Villareal, Jr. April 14, 1987, while respondent Morales, a reporter of Peoples Journal Tonight, was at the Western Police District Headquarters alongUnited Nations Avenue, Manila, Emelita Despuig, an employee of the National Institute of Atmospheric Sciences (NIA) lodge a complaint against petitioner, a NIAS director, for forcible abduction with rape and forcible abduction with attempted rape before the then on duty Patrolman Benito Chio at the General Assignments Section of the headquarters. ISSUE: Whether the CA erred in holding that the publication of the news item was not attended with malice to thus free respondents of liability for damages. RULING:In case of defamation, fraud, and physical injuries, the injured party may bring a civil action for damages, entirely separate and district from the criminal action. Such civil action shall proceed

independently of the criminal prosecution, shall require only a preponderance of evidence. The pertinent provision of the Civil Code (Human Relations) namely Articles 19 and 21 provide: Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his duce, and observe honesty and good faith. Article 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter of the damages. A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. The whole item, including display lines, should be read and construed together, and its meaning and signification thus determined. Petitioned denied. BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25, 2004] Freedom of Expression; the public has the right to be informed on the mental, moral and physical fitness of candidates for public office. FACTS: 1. In the January 3, 1988 issue of the Baguio Midland Courier (BMC), Cecille Afable, the Editor-in-Chief, in her column In and Out of Baguio made the following comments: Of all the candidates for Mayor of Baguio City), Labo has the most imponderables about him. People would ask: can he read and write? Why is he always talking about his Japanese father-in-law? Is he really a Japanes Senator or a barrio Kapitan? Is it true that he will send P18M aid to Baguio? Somebody wanted to put an advertisement of Labo in the Midland Courier but was refused because he has not yet paid his account of the last time he was a candidate for Congress. We will accept all advertisements for him if he pays his old account first. 2. In the same column, Cecille Afable wrote the following comments in her January 10, 1988 column at the Courier: I heard that the Dumpty in the Egg is campaigning for Cortes. Not fair. Some real doctors are also busy campaigning against Labo because he has not also paid their medical services with them. Since he is donating millions he should also settle his small debts like the reportedly insignificant amount of P27,000 only. If he wins, several teachers were signifying to resign and leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio. 3. As a result of the above articles, Ramon Labor, Jr. filed a complaint for Damages before the regional trial Court of Baguio City as he claimed said articles were libelous. He likewise filed a separate criminal complaint before the Office of the City Prosecutor of Baguio but was dismissed; 4. Labo claimed that the said articles were tainted with malice because he was allegedly described as Dumpty in the Egg or one who is a failure in his business which is false because he is a very successful businessman or to mean zero or a big lie; that he is a balasubas due to his alleged failure to pay his medical expenses; 5. The petitioners, however, were able to prove that Labo has an unpaid obligation to the Courier in the amount of P27,415.00 for the ads placed by his campaigners for the 1984 Batasang Pambansa elections; 6. The Regional Trial Court, Branch 6, Baguio City, in its Decision dated June 14, 1990 dismissed Labos complaint for damages on the ground that the article of petitioner Afable was privileged andthe integrity, reputation and honesty of private respondent Labo who was a candidate for Mayor of Baguio City;

7. On January 7, 1992, the Court of Appeals reversed the RTC Decision and ordered the petitioners to pay Ramon Labo, Jr. damages in the total amount of P350,000.00 after concluding that the Dumpty in the Egg refers to no one but Labo himself. Hence, the Petition to the Supreme Court. ISSUES: Was Labo the Dumpty in the Egg described in the questioned article/ Were the articles subject of the case libelous or privileged/ HELD: 1. The Court of Appeals is wrong when it held that Labo is the Dumpty in the Egg in the questioned article. This is so because the article stated that The Dumpty in the Egg is campaigning for Cortes, another candidate for mayor and opponent of Labo himself. It is unbelievable that Labo campaigned for his opponent and againsthimself. Although such gracious attitude on the part of Labo would have been commendable, it is contrary to common human experience. As pointed out by the petitioners, had he done that, it is doubtful whether he could have won as City Mayor of Baguio in the 1988 elections, which he actually did. In line with the doctrine in BORJAL VS. CA, 310 SCRA 1, that it is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a 3rd person could identify him as the object of the libelous publication, the case should be dismissed since Labo utterly failed to dispose of this responsibility. 2. Labo claims that the petitioners could not invoke public interest to justify the publication since he was not yet a public official at that time. This argument is without merit since he was already a candidate for City mayor of Baguio. As such, the article is still within the mantle of protection guaranteed by the freedom of expression provided in the Constitution since it is the publics right to be informed of the mental, moral and physical fitness of candidates for public office. This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the US Supreme Court held: it is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small, that such discussion must be privileged. Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with the character of the private respondent who was running for the top elective post in Baguio City at that time. Miller vs. California [413 US 15, 21 June 1973] Burger (J) Facts: Miller conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. Five unsolicited advertising brochures were sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. After a jury trial, he was convicted of violating California Penal Code 311.2 (a), a misdemeanor, by knowingly distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Issue: Whether the determination of obscene materials are to be determined through the national or community standard.

Held: Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. Thus, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. These specific prerequisites will provide fair notice to a dealer in such materials that hispublic and commercial activities may bring prosecution. The inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike. Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate fact finders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility. Thus the Court herein (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," not "national standards. Gonzales vs. Kalaw-Katigbak [GR L-69500, 22 July 1985] En Banc, Fernando (J): 10 concur, 1 concur in result, 1 took no part, 1 on official leave Facts: Jose Antonio U. Gonzalez is the President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade; while Maria Kalaw Katigbak and Brig. Gen. Wilfredo C. Estrada are the Chairman and Vice-Chairman, respectively of the Board of Review for Motion Pictures and Television. In a resolution of a sub-committee of the Board of 23 October 1984, a permit to exhibit the film "Kapit sa Patalim" under the classification "For Adults Only," with certain changes and deletions enumerated was granted. The film in issue was given an adult classification to serve as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film

shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable andimitative in the young audience will misunderstand these scenes. The Board gave Malaya films an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film. A motion for reconsideration was filed by Gonzales, in behalf of Malaya Films, Lino Brocka, Jose F. Lacaba, and Dulce Q. Saguisag, stating that the classification of the film "For Adults Only" was without basis. Then on 12 November 1984, the Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withhold the issuance of the Permit to exhibit until these deficiencies are supplied." On 10 January 1985, Gonzales, et. al. filed the petition for certiorari with the Supreme Court. Issue: Whether the Board of Review for Motion Pictures and Television have the power to classify the movie Kapit sa Patalim under the classification For Adults Only and impose conditions to edit the material to allow it a General patronage rating. Held: 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 is 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. Toavoid 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 wellnigh 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 Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover the Boards 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 thatsuch an abuse can be considered grave. Accordingly, certiorari does not lie. GONZALES VS. KALAWA KATIGBAK obscenity Justice Fernando

the classification by the Board of Review for Motion Pictures and Television. He claims the classification was without basis. He claims that 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 classifiestion. in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. SC: THE BOARD ACTED WITH ABUSE OF DISCRETION. BUT IT WAS NOT GRAVE. 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 is considerable. Emphasis should rightly be on freedom from censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent 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, as noted earlier, 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. The law, however, frowns on obscenity-and rightly so. 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 theguaranties, unless excludable bemuse 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. The early leading standard of obscenity was the HICKLIN TEST: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Sex and obscenity are not synonymous." Further: "Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern." EO 876 creating the board was tasked to "apply contemporary Filipino cultural values as standard,. As far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State."27 That is a constitutional mandate. It will be less than true to its function it any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belles lettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene. As so well put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit" a in this sensitive area of a man's personality. The question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes then 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. The ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned: a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. Pita vs. Court of Appeals [GR 80806, 5 October 1989] En Banc, Sarmiento (J): 10 concur, 3 concur in result, 1 on leave 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, Auxiliary 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 Leo Pita. On 7 December 1983, Pita filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin and or restrain Bagatsing, Cabrera and their agents from confiscating his magazines or from otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of

freedom of speech and of the press. On 12 December 1983, Pita filed an Urgent Motion for issuance of a temporary restraining order against indiscriminate seizure, confiscation and burning of plaintiffs "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on 14 December 1983. On 5 January 1984, Pita filed his Memorandum in support of the issuance of the writ of preliminary injunction, raising the issue as to "whether or not the defendants, and or their agents can without a court order confiscate or seize plaintiff's magazine before any judicial finding is made on whether said magazine is obscene or not." The restraining order lapsed on 3 January 1984, Pita filed an urgent motion for issuance of another restraining order, which was opposed by Bagatsing on the ground that issuance of a second restraining order would violate the Resolution of the Supreme Court dated 11 January 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa 129, which provides that a temporary restraining order shall be effective only for 20 days from date of its issuance. On 11 January 1984, the trial court issued an Order setting the case for hearing on 16 January 1984 "for the parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine' alleged (sic) seized, confiscated and or burned by the defendants, are obscence per se or not." On 3 February 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary injunction, and dismissing the case for lack of merit. Likewise, the Appellate Court dismissed the appeal, holding that the 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; and that the right against unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, or search is an incident to an arrest, or is conducted in a vehicle or movable structure. Pita filed the petition for review with the Supreme Court. Issue: Whether the Mayor can order the seizure of obscene materials as a result of an anti-smut campaign. Held: The Court is not convinced that Bagatsing and Cabrera have shown the required proof to justify a ban and to warrant confiscation of the literature for which mandatory injunction had been sought below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant. The fact that the former Mayor's act was sanctioned by "police power" is no license to seize property in disregard of due process. Presidential Decrees 960 and 969 are, arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances, from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay down procedures for implementation. It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge. The Court finds greater reason to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the present case involves an obscenity rap makes it no different from Burgos vs. Chief of Staff AFP, a political case, because speech is speech, whether political or "obscene." Although the Court is not ruling out warrantless searches, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code. There is no "accused" here to speak of, who ought to be "punished". Further, to say that the Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the Mayor judge, jury, and executioner rolled into one. Thus, the court mae a resume, to wit: (1) The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order; (2) The authorities must convince the court that the

materials sought to be seized are "obscene", and pose a clear and present danger of an evil substantive enough to warrant State interference and action; (3) The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-to-case basis and on His Honor's sound discretion. (4) If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for; (5) The proper suit is then brought in the court under Article 201 of the Revised Penal Code; and (6) Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed "obscene." The Court states, however, that "these do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code or the Revised Penal code."

PITA VS. COURT OF APPEALS [178 SCRA 362; G.R. NO.80806; 5 OCT 1989] 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 coedited 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 plaintiffs 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 judges sound discretion;

BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, et al. v. GLEN THEATRE,INC., et al. certiorari to the united states court of appeals for the seventh circuit No. 90-26. Argued January 8, 1991 Decided June 21, 1991 Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law which requires respondent dancers to wear pasties and a G-string asserting that the law's prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed. 904 F. 2d 1081, reversed. The Chief Justice, joined by Justice O'Connor and Justice Kennedy, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 4-10. (a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e. g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932. P. 4. (b) Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376-377 which rejected the contention that symbolic speech is entitled to full First Amendment protection the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation has been upheld. See, e. g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61. This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the

governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 5-10. Justice Scalia concluded that the statute as a general law regulating conduct and not specifically directed at expression, either in practice or on its face is not subject to normal First Amendment scrutiny and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. . There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 1-9. Justice Souter, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U.S. 367, is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments prostitution, sexual assaults, and other criminal activity is sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 51. Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id., at 48. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a Gstring moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 1-7. Michael BARNES, Prosecuting Attorney of St. Joseph County, Indiana, et al. v. GLEN THEATRE, INC., et al. Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law which requires respondent dancers to wear pasties and a G-string asserting that the law's prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed. 904 F.2d 1081 (CA9 1990), reversed. The Chief Justice, joined by Justice O'CONNOR and Justice KENNEDY, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 565-572. (a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648. P. 565-572. (b) Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 16781679, 20 L.Ed.2d 672 which rejected the contention that symbolic speech is entitled to full First

Amendment protectionthe statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation has been upheld. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446. This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 566-572. Justice SCALIA concluded that the statuteas a general law regulating conduct and not specifically directed at expression, either in practice or on its faceis not subject to normal First Amendment scrutiny and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. ----, 110 S.Ct. 1595, 108 L.Ed.2d 876. There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 2458-2463. Justice SOUTER, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments prostitution, sexual assaults, and other criminal activityis sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 51, 106 S.Ct. 925, 930, 930, 89 L.Ed.2d 29. Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id., at 48, 106 S.Ct., at 929. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 2458-2462. FCC v. Pacifica Foundation Brief Fact Summary. A satiric humorist named George Carlin (Carlin) recorded a 12-minute monologue entitled Filthy Words before a live audience in a California theatre. Carlin began by referring to his thoughts about the words that could not be said on the public airwaves. Then, Carlin proceeded to list those words and repeat them over and over again. Synopsis of Rule of Law. The concept of indecent is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is reasonable risk that children may be in the audience.

Facts. On October 30, 1973, at 2:00 p.m., a New York radio station, owned by the Respondent, Pacifica Foundation (Respondent) broadcast the Filthy Words monologue. A few weeks later, a man who stated that he heard the broadcast while driving with his young son, wrote a letter complaining to the Petitioner, the Federal Communications Commission (Petitioner). In response to the complaint, the Respondent explained that the monologue had been played during a program about contemporary societys attitude toward language and that, immediately before its broadcast, listeners had been advised of the monologues language. The Petitioner, after characterizing the language as patently offensive, though not necessarily obscene, issued a declaratory order granting the complaint, but not imposing any formal sanctions. The Petitioner concluded that the language as broadcast was indecent and prohibited by 18 U.S.C. Section:1464, prohibiting the broadcast of obscene, indecent or profane language. The Unit ed States Court of Appeals reversed. Issue. Whether the Petitioner has any power to regulate a radio broadcast that is indecent but not obscene? Held. It is not necessary for the Petitioner to determine that a communication is obscene before it may exercise its regulatory power. The Petitioner can use its regulatory power to channel indecent material to times when children are not able, or much less likely, to receive it. As a result, the Petitioners action is sustained and the decision of the United States Court of Appeals is reversed.

438 U.S. 726 (98 S.Ct. 3026, 57 L.Ed.2d 1073) FEDERAL COMMUNICATIONS COMMISSION, Petitioner, v. PACIFICA FOUNDATION. A radio station of respondent Pacifica Foundation (hereinafter respondent) made an afternoon broadcast of a satiric monologue, entitled "Filthy Words," which listed and repeated a variety of colloquial uses of "words you couldn't say on the public airwaves." A father who heard the broadcast while driving with his young son complained to the Federal Communications Commission (FCC), which, after forwarding the complaint for comment to and receiving a response from respondent, issued a declaratory order granting the complaint. While not imposing formal sanctions, the FCC stated that the order would be "associated with the station's license file, and in the event subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress." In its memorandum opinion, the FCC stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent radio broadcasts, and it advanced several reasons for treating that type of speech differently from other forms of expression. The FCC found a power to regulate indecent broadcasting, inter alia, in 18 U.S.C. 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications." The FCC characterized the language of the monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance where the "law generally speaks to channeling behavior rather than actually prohibiting it." The FCC found that certain words in the monologue depicted sexual and excretory activities in a particularly offensive manner, noted that they were broadcast in the early afternoon "when children are undoubtedly in the audience," and concluded that the language as broadcast was indecent and prohibited by 1464. A three-judge panel of the Court of Appeals reversed, one judge concluding that the FCC's action was invalid either on the ground that the order constituted censorship, which was expressly forbidden by 326 of the Communications Act of 1934, or on the ground that the FCC's opinion was the functional equivalent of a rule, and as such was "overbroad." Another judge, who felt that 326's censorshi provision did not apply to broadcasts forbidden by 1464, concluded that 1464, construed narrowly as it has to be, covers only language that is obscene or otherwise unprotected by the First Amendment. The third judge, dissenting, concluded that the FCC had correctly condemned

the daytime broadcast as indecent. Respondent contends that the broadcast was not indecent within the meaning of the statute because of the absence of prurient appeal. Held : The judgment is reversed. Pp. 734-741; 748-750; 761-762; 3046-3047. 181 U.S.App.D.C. 132, 556 F.2d 9, reversed. 475 U.S. 41 City of Renton v. Playtime Theatres, Inc. (No. 84-1360) Respondents purchased two theaters in Renton, Washington, with the intention of exhibiting adult films and, at about the same time, filed suit in Federal District Court, seeking injunctive relief and a declaratory judgment that the First and Fourteenth Amendments were violated by a city ordinance that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. The District Court ultimately entered summary judgment in the city's favor, holding that the ordinance did not violate the First Amendment. The Court of Appeals reversed, holding that the ordinance constituted a substantial restriction on First Amendment interests, and remanded the case for reconsideration as to whether the city had substantial governmental interests to support the ordinance. Held: The ordinance is a valid governmental response to the serious problems created by adult theaters and satisfies the dictates of the First Amendment. Cf. Young v. American Mini Theatres, Inc., 427 U.S. 50. Pp. 46-55. (a) Since the ordinance does not ban adult theaters altogether, it is properly analyzed as a form of time, place, and manner regulation. "Content-neutral" time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. Pp. 46-47. (b) The District Court found that the Renton City Council's "predominate" concerns were with the secondary effects of adult theaters on the surrounding community, not with the content of adult films themselves. This finding is more than adequate to establish that the city's pursuit of its zoning interests was unrelated to the suppression of free expression, and thus the ordinance is a "content-neutral" speech regulation. Pp. 47-50. (c) The Renton ordinance is designed to serve a substantial governmental interest while allowing for reasonable alternative avenues of communication. A city's interest in attempting to preserve the quality of urban life, as here, must be accorded high respect. Although the ordinance was enacted without the benefit of studies specifically relating to [p42] Renton's particular problems, Renton was entitled to rely on the experiences of, and studies produced by, the nearby city of Seattle and other cities. Nor was there any constitutional defect in the method chosen by Renton to further its substantial interests. Cities may regulate adult theaters by dispersing them, or by effectively concentrating them, as in Renton. Moreover, the ordinance is not "underinclusive" for failing to regulate other kinds of adult businesses, since there was no evidence that, at the time the ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton. Pp. 50-53. (d) As required by the First Amendment, the ordinance allows for reasonable alternative avenues of communication. Although respondents argue that, in general, there are no "commercially viable" adult theater sites within the limited area of land left open for such theaters by the ordinance, the fact that respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a violation of the First Amendment, which does not compel the Government to ensure that adult theaters, or any other kinds of speech-related businesses, will be able to obtain sites at bargain prices. Pp. 53-54. 748 F.2d 527, reversed. City of Renton v. Playtime Theatres, Inc

Brief Fact Summary. A zoning ordinance prohibited adult movie theatres from being located within 1,000 feet of any residential zone, church, park or school. The Respondent, Playtime Theatres, Inc. (Respondent), claimed that the First and Fourteenth Amendments of the United States Constitution (Constitution) were violated by the city ordinance. Synopsis of Rule of Law. Content-neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. Facts. The Respondent purchased two theatres in Renton, Washington for the purpose of showing adult films. The Respondent filed suit in Federal District Court seeking an injunction and declaratory judgment claiming that the First and Fourteenth Amendments of the Constitution were violated by a city ordinance, which prohibited adult motion picture theatres from being located within 1,000 feet of any residential zone, single or multiple-family dwelling, church, park or school. The District Court entered summary judgment in favor of the Petitioner, the City of Renton (Petitioner), holding that the ordinance did not violate the First Amendment of the Constitution. On reversal, the Court of Appeals held that the ordinance constituted a substantial restriction on First Amendment constitutional interests and remanded the case for reconsideration as to whether the city had substantial interests to support the ordinance. Issue. Was the zoning ordinance an acceptable time, place, and manner restriction when it outlawed adult movie theaters within 1000 feet of any residential zone, church, park, or school? Held. Yes. The judgment of the Court of Appeals is reversed. Justice William H. Rehnquist (J. Rehnquist) delivered the opinion of the Supreme Court. Content-neutral time, place, and manner regulations are acceptable so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. Dissent. Justice William J. Brennan (J. Brennan) and Justice Thurgood Marshall (J. Marshall) dissented stating that the ordinance discriminates based on content. The record presented to support the asserted interest is very thin. Even if the ordinance should be treated as time, place, manner restriction, it is still invalid because it does not leave open reasonable alternative avenues of communication. Discussion. The Petitioners ordinance does not ban adult theaters altogether, but rather provides that such theatres may not be located in certain areas. Thus, it is a time, place, manner restriction. The Petitioners City Council was predominately concerned with the secondary effects of adult theaters and not with the content of the adult films themselves. The secondary effects were crime, the effects on the citys retail trade, property values, and the effects on the general quality of urban life. The ordinance was not designed to suppress the expression of unpopular views. It was designed to serve the substantial government interests of crime prevention, protection of retail trade, maintenance of property values and the protection of the quality of life. The ordinance allowed for reasonable alternative avenues of communication by leaving open areas of land in which to place an adult theater. The fact that the land may be substantially already in use is of no significance. The Fir first Amendment of the Constitution does not compel the government to ensure that adult theaters will be able to obtain property sites. 478 U.S. 675 Bethel School District No. 403 v. Fraser (No. 84-1667) Respondent public high school student (hereafter respondent) delivered a speech nominating a fellow student for a student elective office at a voluntary assembly that was held during school hours as part of a school-sponsored educational program in self-government, and that was attended by approximately

600 students, many of whom were 14-year-olds. During the entire speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Some of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed. Prior to delivering the speech, respondent discussed it with several teachers, two of whom advised him that it was inappropriate and should not be given. The morning after the assembly, the Assistant Principal called respondent into her office and notified him that the school considered his speech to have been a violation of the school's "disruptive conduct rule," which prohibited conduct that substantially interfered with the educational process, including the use of obscene, profane language or gestures. Respondent was given copies of teacher reports of his conduct, and was given a chance to explain his conduct. After he admitted that he deliberately used sexual innuendo in the speech, he was informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. Review of the disciplinary action through petitioner School District's grievance procedures resulted in affirmance of the discipline, but respondent was allowed to return to school after serving only two days of his suspension. Respondent, by his father (also a respondent) as guardian ad litem, then filed suit in Federal District Court, alleging a violation of his First Amendment right to freedom of speech and seeking injunctive relief and damages under 42 U.S.C. 1983. The court held that the school's sanctions violated the First Amendment, that the school's disruptive conduct rule was unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment. The court awarded respondent monetary relief and enjoined the [p676] School District from preventing him from speaking at the commencement ceremonies. The Court of Appeals affirmed. Held: 1. The First Amendment did not prevent the School District from disciplining respondent for giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language, FCC v. Pacifica Foundation, 438 U.S. 726, as well as limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. Ginsberg v. New York, 390 U.S. 629. Petitioner School District acted entirely within its permissible authority in imposing sanctions upon respondent in response to his offensively lewd and indecent speech, which had no claim to First Amendment protection. Pp. 680-686. 2. There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. The school disciplinary rule proscribing "obscene" language and the prespeech admonitions of teachers gave adequate warning to respondent that his lewd speech could subject him to sanctions. P. 686. Bethel School District No. 403 v. Fraser

Brief Fact Summary. A student gave a nominating speech in a general school assembly that described another candidate with strong sexual metaphors. Synopsis of Rule of Law. Schools may determine that certain modes of expression are inappropriate and subject the speech to sanctions. Facts. Fraser (Respondent) gave a speech nominating his friend for a student body office at the school assembly. He described his friends attributes by using sexually explicit metaphors. Although a teacher reviewed the speech, and the speaker was warned against giving the speech, Respondent chose to do it anyway. After the speech, one teacher complained that he had to interrupt his regular class to explain and review sections of the speech. Respondent was subsequently suspended from school for three days. Issue. Is a high school students lewd speech protected by the First Amendment? Held. No. The Court held that *t+he undoubted freedom to advocate unpopular and controversial issues in schools and classrooms must be balanced against societys countervailing interest in teaching students the boundaries of socially appropriate behavior. Here, the students First Amendment rights were outweighed by the schools interest in outweighing vulgar and lewd speech. The students interests were unrelated to any political viewpoint, i.e., they were content neutral.

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) Facts: A public high school student delivered a nominating speech on behalf of another student at a student assembly. The speech contained elaborate and immature sexual innuendo. The school suspended the student for violating the schools no-disruption rule, which prohibited obscene, profane language. The student contended that the suspension violated his First Amendment rights because his speech caused no disruption of school activities within the meaning of Tinker. Issue: Whether school officials may prohibit a vulgar and lewd student speech at a student assembly even if the speech does not create a substantial disruption. Holding: In a 7-2 decision, the Court held that school officials may prohibit student speech before a student assembly that is vulgar, lewd and plainly offensive. Reasoning: Public school officials have a responsibility to inculcate values into students. Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. The vulgar sexual allusions of the student in this case differ markedly from the pure political message of the black-armband case of Tinker. School officials were not censoring speech based on viewpoint. Rather, they were punishing the student for using vulgar and lewd terms at a student assembly. Majority: The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. (Chief Justice Warren Burger) Dissent: It does seem to me, however, that if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. The

interest in free speech protected by the First Amendment and the interest in fair procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require this result. (Justice John Paul Stevens) 484 U.S. 260 Hazelwood School District v. Kuhlmeier (No. 86-836) Respondents, former high school students who were staff members of the school's newspaper, filed suit in Federal District Court against petitioners, the school district and school officials, alleging that respondents' First Amendment rights were violated by the deletion from a certain issue of the paper of two pages that included an article describing school students' experiences with pregnancy and another article discussing the impact of divorce on students at the school. The newspaper was written and edited by a journalism class, as part of the school's curriculum. Pursuant to the school's practice, the teacher in charge of the paper submitted page proofs to the school's principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text, and because he believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students. The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father's conduct, and the principal believed that the student's parents should have been given an opportunity to respond to the remarks or to consent to their publication. Believing that there was no time to make necessary changes in the articles if the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages. The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed. Held: Respondents' First Amendment rights were not violated. (a) First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. (b) The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums [p261] only if school authorities have, by policy or by practice, opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner. (c) The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.

(d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper. Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) FACTS- Students enrolled in the Journalism II class at Hazelwood East High School were responsible for writing and editing the school's paper The Spectrum. Two of the articles submitted for publication in the final edition of the paper contained stories on divorce and teenage pregnancy. The divorce article featured a story about a girl who blamed her father's actions for her parents' divorce. The teenage pregnancy article featured stories in which pregnant students at Hazelwood East shared their experiences. To ensure their privacy, the girls' names were changed in the article. The school principal felt that the subjects of these two articles were inappropriate. He concluded that journalistic fairness required that the father in the divorce article be informed of the story and be given an opportunity to comment. He also stated his concerns that simply changing the names of the girls in the teenage pregnancy article may not be sufficient to protect their anonymity and that this topic may not be suitable for the younger students. As a result, he prohibited these articles from being published in the paper. Because there was no time to edit the paper if it were to go to press before the end of the school year, entire pages were eliminated. The student journalists then brought suit to the U.S. District Court for the Eastern District of Missouri, alleging that their First Amendment rights to freedom of speech had been violated. The U.S. District Court concluded that they were not. The students appealed to the U.S. Court of Appeals for the Eighth Circuit, which reversed the ruling, stating that the students' rights had been violated. The school appealed to the U.S. Supreme Court, which granted certiorari. PROCEDURE Lower Court: Eighth Circuit Lower Court Ruling: Held: The decision of the principal to prohibit the publishing of certain student articles deemed to be inappropriate violates the student journalists' First Amendment free speech rights. Supreme Court Ruling: Held: Reversed the decision of the Eighth Circuit. The decision of the school principal to prohibit the publishing of certain articles deemed to be inappropriate does not violate the student journalists' First Amendment right of freedom of speech. Supreme Court Vote: 5-3 Argued: October 13, 1987 Decided: January 13, 1988 Majority Opinion: Justice White (joined by Chief Justice Rehnquist and Justices O'Connor and Scalia) Dissenting Opinion: Justice Brennan (joined by Justices Marshall and Blackmun dissenting) ISSUES Does the decision of a principal to prohibit the publishing of certain articles, which he deems inappropriate, in the school newspaper violate the student journalists' First Amendment right of freedom of speech? REASONING The U.S. Supreme Court held that the principal's actions did not violate the students' free speech rights. The Court noted that the paper was sponsored by the school and, as such, the school had a legitimate

interest in preventing the publication of articles that it deemed inappropriate and that might appear to have the imprimatur of the school. Specifically, the Court noted that the paper was not intended as a public forum in which everyone could share views; rather, it was a limited forum for journalism students to write articles pursuant to the requirements of their Journalism II class, and subject to appropriate editing by the school. Key Points to Remember The First Amendment protects the right to freedom of speech. The Spectrum was written by students in the Journalism II course as part of the requirements of that course. The articles in question were about divorce and teenage pregnancy. The subjects of both of these stories were students at Hazelwood East High School. The divorce article featured a story in which a girl blamed her father's actions for her parents' divorce, but the author did not adhere to journalistic standards by informing the father of the story and giving him an opportunity to respond. Although their names were changed, the principal was concerned that students may be able to recognize the identity of the girls who were interviewed for the pregnancy article. Fernando v CA G.R. No. 159751 December 6, 2006 J. Quisimbing Facts: Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police CIDG conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of the store for copies of New Rave, Hustler, IOU magazine, and VHS tapes. On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic. All appellants pled not guilty to the offenses charged. They waived their right to present evidence. The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners Fernando and Estorninos. The CA affirmed the decision. The petitioners sought for review in the SC on certiorari and assailed the CA decision. They assigned the following errors: I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he was selling the said materials. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so. The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner Fernandos ownership was sufficiently proven. As the

owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information. Issue: Whether the appellate court erred in affirming the petitioners conviction. Held: No. Petition dismissed. Ratio: As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials. Necessarily, that the confiscated materials are obscene must be proved. People v. Kottinger-.obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence 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. Also, that which shocks the ordinary and common sense of men as an indecency. The disclaimer was whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it. Go Pin- If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for arts sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures Padan- An actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. Katigbak- the Court measures obscenity in terms of the dominant theme of the material taken as a whole rather than in isolated passages. Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene. Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and two-cents worths among judges as to what is obscene or what is art. The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop,

adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases. There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is patently offensive. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive hard core sexual conduct. Ie offensive descriptions of sex acts. What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion. In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts. Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The mayors permit shows that Fernando was the owner of the store. Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was served. NAVARRO VS. VILLEGAS assembly and petition workers and peasants, wrote a letter to the Mayor of Manila, Villegas, applying for a permit to hold a rally at the Plaza Miranda. denied the request, because a month ago, during the opening of the session of Congress, there was a series of demonstrations and rallies, which ended in destruction of private and public property, loss of lives and injuries to others. Schools, offices and stores were forced to close then. The Mayor thought that a rally at Plaza Miranda poses a clearer and more imminent danger of public disorder. instead. He also said he can grant the rally at Plaza Miranda during Saturdays, Sundays and Holidays so as not to cause great disruption of the normal activities of the community. f right to peaceably assemble and petition the govt for redress of grievances. use public places. He contends that for the complete enjoyment of the right, a particular public place may be used for greater publicity and effectiveness. He claims that Plaza Miranda is the most convenient place for rallies and it has acquired a certain significance in the national life as the Congress of the People, Court of Last Resort, Forum of the Masses. Navarro claims that the denial by the mayor was designed to minimize the effectiveness of the rally. SC: The petition is denied because Navarro failed to show a clear specific legal duty on the part of the Mayor to grant their application for permit unconditionally.

Justice Fernando dissented and voted to granted the petition. The right of freedom of assembly is to be accorded the utmost deference and respect. The reasons given by the mayor do not satisfy the standards in the Primicias case. The effect is one of prior restraint! This is not allowed. ANNOTATIONS: read orig kasi puro doctrines: Free Speech and Right to Assembly complement each other. They are inseparable and cognate rights. A republican form of government implies the right of citizens to meet peaceably for consultation and to express protest. Right to Assembly is NOT ABOSLUTE. It is subject to regulation under the police power of the state. It may be regulated in order that it may not be injurious to the equal enjoyment of others having an equal right not injurious to the rights of community. It must be exercised in subordination to the general comfort and convenience and in consonance with peach and good order. However, the regulation must not be in the guise of abridgment or denial of said right. The statute authorizing municipalities to impose regulations to insure the safety and convenience of the people in the use of public places is consistent with civil liberties and is one of the means of safeguarding peace and good order upon which they ultimately depend. The holding of meetings for peaceful political action cannot be proscribed. Those who assist such meetings cannot be branded as criminals. The rights of free speech and peaceful assembly are preserved not as to the auspices under which the meeting is held but as to its purpose; not as to the relation of the speakers, but whether their utterances transcend the bounds of freedom of speech. Freedom of expression cannot be denied except on a showing of a clear and present danger of a substantive evil that Congress has the right to prevent. There should be no prior restraint on the communication of views nor subsequent punishment unless there is clear and present danger. other matters: Right to peaceful assembly is an attribute of citizenship. It is found wherever civilization exists. It was not a right granted to the people by the Constitution. It was there long before the adoption of the constitution (of the US). Guide to Interpretation the trend is to recognize the broadest scope and the widest latitude in public parades and demonstrations, whether religious or political. Only the those which endangers paramount public interest will give occasion for permissible limitation of the right. (widest room for discussion, Limitations: Criticism should be specific and constructive, specifying particular objectionable actuations of the government. It must be reasoned, tempered, not contemptuous condemnation of the entire government set-up (in which case the intention would be seditious). Criterion for possible limitation: Standards: 1. Dangerous tendency 2. Clear and Present Danger 3. Balancing of Interests 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. REYES VS. BAGATSING [125 SCRA 553; L-65366; 9 NOV 1983] Facts: Petitioner sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta to the gates of the United States Embassy. Once there, and in an open space of public property, a short program would be held. The march would be attended by the local and foreign participants of such conference. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. There was likewise an assurance in the petition that in theexercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally. However the request was denied. Reference was made to persistent intelligence reports affirming the plans of subversive/criminal elements to infiltrate or disrupt any assembly or congregations where a large number of people is expected to attend. Respondent suggested that a permit may be issued if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured. An oral argument was heard and the mandatory injunction was granted 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 a permit. However Justice Aquino dissented that the rally is violative of Ordinance No. 7295 of the City of Manila prohibiting the holding of rallies within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Hence the Court resolves.

Issue: Whether or Not the freedom of expression and the right to peaceably assemble violated. 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. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. Time immemorial Luneta has been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. With regard to the ordinance, there was no showing that there was violation and even if it could be shown that such a condition is satisfied it does not follow that respondent could legally act the way he did. The validity of his denial of the permit sought could still be challenged. A summary of the application for permit for rally: The 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 private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed 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. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. Notice is given to applicants for the denial. Reyes vs. Bagatsing [GR L-65366, 9 November 1983] En Banc, Fernando (CJ): 6 concur, 3 concur in separate opinions, 1 dissents in separate opinion, 1 voted for the issuance ex-parte of a preliminary mandatory injunction, 1 on sick leave Facts: Retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the City of Manila to hold a peaceful march and rally on 26 October 1983 from 2:00 to 5:00 p.m., starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. After the planned delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. An assurance was made to observe all the necessary steps "to ensure a peaceful march and rally." Since Reyes had not been informed of any action taken on his request on behalf of the organization to hold a rally, on 20 October 1983, he filed a suit for mandamus with alternative prayer for writ of preliminary mandatory injunction. The oral argument was heard on 25 October 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for 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 a permit. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." Hence the detailed exposition of the Court's stand on the matter. Issue: Whether Reyes, et. al. can exercise their freedom of speech, press, or to assemble in front of the US embassy.

Held: The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 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 a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. Neither can there be any valid objection to the use of the streets to the gates of the US Embassy, hardly two blocks away at the Roxas Boulevard. The novel aspect of the case is that there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. Related to this, the second paragraph of its Article 22 of the Vienna Convention on Diplomatic Relations (to which the Philippines is a signatory) reads: "2. 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." That being the case, 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, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, Ordinance 7295 of the City of Manila prohibits the holding or staging of rallies or demonstrations within a radius of 500 feet from any foreign mission or chancery; and for other purposes. Even then, if 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. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied, it does not follow that Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that

the distance is less than 500 feet, the need to pass on that issue was obviated. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. Malabanan vs. Ramento [GR 62270, 21 May 1984] En Banc, Fernando (CJ): 10 concur, 3 took no part Facts: Crispin Malabanan, Evilio Jalos, Ben Luther Lucas, Sotero Leonero and June Lee were officers of the Supreme Student Council of the Gregorio Araneta University Foundation. They sought and were granted by the school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M. on 27 August 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science basketball court (VMAS), 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 with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science Building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on 9 September 1982, they were informed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by Malabanan, et. al. both before the Court of First Instance of Rizal in a petition for mandamus with damages against Cesar Mijares, in his capacity as the President of GAUF, Gonzalo del Rosario, in his capacity as the Director for Academic Affairs of GAUF; Tomas B. Mesina, in his capacity as the Dean of Student Affairs of GAUF; Atty. Leonardo Padilla, in his capacity as Chief Legal Counsel & Security Supervisor of GAUF; Atty. Fablita Ammay, Rosendo Galvante and Eugenia Tayao, in their capacities as members of the Ad Hoc Committee of GAUF and before the Ministry of Education, Culture, and Sports. On 20 October 1982, Anastacio D. Ramento, as Director of the National Capital Region, found Malabanan, et. al. guilty of the charge of having violated paragraph 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oraldefamation. The penalty was suspension for one academic year. Hence, the petition for certiorari, prohibition and mandamus. Issue: Whether the students were properly meted out a year suspension due to the disruption of classes in GAUF attended by the students concerted activity. Held: Malabanan, et.al. are entitled to their rights to peaceable assembly and free speech. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level, there is persuasive force to this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal

intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." It does not follow, however, that Malabanan, et. al. can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the VMAS building of the University. Moreover, it was continued longer than the period allowed. The "concerted activity went on until 5:30 p.m." The University could thus, take disciplinary action. On those facts, however, an admonition, even a censure certainly not a suspension could be the appropriate penalty. A oneyear period of suspension is much too severe, While the discretion of both the University and Director Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question. To avoid this constitutional objection, it is the holding of the Court that a one-week suspension would be punishment enough. MALABANAN VS. RAMENTO [129 SCRA 359; G.R. NO.62270; 21 MAY 1984] 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 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science basketball court (VMAS), 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 with the Institute of Agriculture. The same day, they marched toward the Life Science Building and continued their rally. It was outside the area covered by their permit. Even they rallied beyond the period allowed. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were informed that they were under preventive suspension for their failure to explain the holding of an illegal assembly. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal against private respondents and before the Ministry of Education, Culture, and Sports. Respondent Ramento found petitioners guilty of the charge of illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. Hence this petition. Issue: Whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the right to peaceable assembly and its cognate right of free speech.

Held: Yes. Student leaders are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. But with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." The rights to peaceable assembly and free speech are guaranteed students of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear and present danger to a substantive evil that the state, has a right to present. As a corollary, the utmost leeway and scope is accorded the content of the placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever grievances that may be aired being susceptible to correction through the ways of the law. If the assembly is to be held in school premises, permit must be sought from its 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 nonacademic personnel. Even if, however, there be violations of its terms, the penalty incurred should not be disproportionate to the offense. BAYOT VS. SANDIGANBAYAN [128 SCRA 383; NO.L-61776 TO NO.L-61861; 23 MAR 1984] Facts: Bayot is one of the several persons who was accused in more than 100 counts of estafa thru falsification of Public documents before the Sandiganbayan. The said charges started from his alleged involvement as a government auditor of the commission on audit assigned to the Ministry of education and culture, with some other employees from the said ministry. The bureau of treasury and the teachers camp in Baguio City for the preparation and encashment of fictitious TCAA checks for the nomexistent obligations of the teachers camp resulting in damage to the government of several millions. The 1st 32 cases were filed on july 25, 1987, while Bayot ran for municipal mayor of Amadeo Cavite and was elected on January 1980. but on May 1980 Sandiganbayan promulgated a decision convicting the accused together with his other co accused in all but one of the thirty two cases filed against them. On Mach 16, 1982 Batas Pambansa Blg 195 was passed amending RA 3019. Issue: Whether or Not it would be violative of the constitutional guarantee against an ex post facto law. Held: The court finds no merit in the petitioners contention that RA 3019 as amended by Batas Pambansa Blg 195, which includes the crime of estafa through falsification of Public Documents as among crimes subjecting the public officer charged therewith with suspension from public office pending action in court, is a penal provision which violates the constitutional prohibition against the enactment of ex post facto law. Accdg to the RPC suspension from employment and public office during trial shall not be considered as a penalty. It is not a penalty because it is not a result of a judicial proceeding. In fact, if acquitted the official who is suspended shall be entitled to reinstatement and the salaries and benefits which he failed to receive during suspension. And does not violate the constitutional provision against ex post facto law. The claim of the petitioner that he cannot be suspended because he is currently occupying a position diffren tfrom that under which he is charged is untenable. The amendatory provision clearly states that any incumbent public officer against whom any criminal prosecution under a valid information under RA 3019 for any offense involving fraud upon the government or public funds or property or whatever stage of execution and mode of participation shall be suspended from office. The use of the word office applies to any office which the officer charged may be holding and not only the particular office under which he was charged.