SECTION 4: Freedom of Expression

The Diocese of Bacolod v. COMELEC

FACTS:
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound
housing the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6′)
by ten feet (10′) in size. They were posted on the front walls of the cathedral within public view.
The first tarpaulin contains the message “IBASURA RH Law” referring to the Reproductive
Health Law of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the
present case. This tarpaulin contains the heading “Conscience Vote” and lists candidates as either
“(Anti-RH) Team Buhay” with a check mark, or “(Pro-RH) Team Patay” with an “X” mark. The
electoral candidates were classified according to their vote on the adoption of Republic Act No.
10354, otherwise known as the RH Law. Those who voted for the passing of the law were
classified by petitioners as comprising “Team Patay,” while those who voted against it form
“Team Buhay.”

Respondents conceded that the tarpaulin was neither sponsored nor paid for by any
candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the 2013
elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.

ISSUE:
Whether or not the assailed notice and letter for the removal of the tarpaulin violated petitioners’
fundamental right to freedom of expression. – Yes

HELD:
The Court held that every citizen’s expression with political consequences enjoys a high
degree of protection.
Moreover, the respondent’s argument that the tarpaulin is election propaganda, being
petitioners’ way of endorsing candidates who voted against the RH Law and rejecting those who
voted for it, holds no water.
The Court held that while the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election propaganda. The
tarpaulin was not paid for or posted “in return for consideration” by any candidate, political
party, or party-list group.
By interpreting the law, it is clear that personal opinions are not included, while
sponsored messages are covered.

United States v. Bustos (see short version)

SHORT VERSION:

FACTS:
Citizens of the Province of Pampanga prepared and signed a petition to the Executive Secretary
charging Punslan, justice of the peace, with malfeasance in office and asked for his removal.
After filing a motion for new trial, the judge of first instance ordered the suppression of the
charges and acquitted the justice of the peace of the same. Criminal action was then begun
against the petitioners, now become the defendants, charging that portions of the petition
presented to the Executive Secretary were libelous. The trial court found thirty-two of the
defendants guilty and sentenced each of them to pay a nominal fine.

HELD: Express malice was not proved by the prosecution. Good faith surrounded the action of
the petitioners. Their ends and motives were justifiable. The guaranties of a free speech and a
free press include the right to criticize judicial conduct.

IMPORTANT POINTS:
- Accusation is not directed to an individual.
- Doctrine of privilege: The people have the right to scrutinize, comment, or condemn the
conduct of their public officials as long as their comments are made in good faith and with
justifiable ends; they are insulated from prosecution or damage suits for defamation even if
such views are found to be inaccurate or erroneous; the burden of proving malice is shifted to
the plaintiff.
- Scalpel part of the decision  The interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public
officer must not be too thin-skinned with reference to comment upon his official acts. Only
thus can the intelligence and dignity of the individual be exalted. Of course, criticism does
not authorized defamation. Nevertheless, as the individual is less than the State, so must
expected criticism be born for the common good. Rising superior to any official, or set of
officials, to the Chief Executive, to the Legislature, to the Judiciary — to any or all the
agencies of Government — public opinion should be the constant source of liberty and
democracy.

LONG VERSION:

FACTS:
In 1915, 34 Pampanga residents signed a petition to the Executive Secretary regarding
charges against Roman Punsalan, the justice of the peace of Macabebe. They wanted to oust him
from his office.
Specific allegations against him included bribery charges, involuntary servitude, and
theft.
The justice denied the charges. In the CFI, not all the charges were proved. But, the judge
still found him guilty.
Punsalan filed charges alleging that he was the victim of prosecution and one Jaime, an
auxiliary justice, instigated the charges against him for personal reasons. He was acquitted.
The complainants filed an appeal to the Governor General but it wasn’t acted upon.
Criminal action was instituted aganst the residents by Punsalan.
The CFI found almost all of the 34 defendants guilty and sentenced them to pay 10 pesos or
suffer imprisonment in case of insolvency.
The defendants filed a motion for a retrial to retire the objection made by Punsalan. The trial
court denied the motion. All except 2 of the defendants appealed. Making assignments of error.
1. The court erred in overruling motion for retrial.
2. Error in not holding that the libelous statement was not privileged
3. Error in not acquitting defendants
4. Evidence failed to show gult of defendants beyond reasonable doubt.
5. Erred in making defendants prove that the libelous statements were true.
6. Error in sustaining the prosecution’s objection to the introduction in evidence by the accused
of the affidavits upon which the petition forming the basis of the libelous charge was based.
7. Erred in refusing to permit the defendants to retire the objection in advertently interposed by
their counsel to the admission in evidence of the expediente administrativo out of which the
accusation in this case arose.

ISSUE:
Whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice of
the peace in Pampanga. - Yes

HELD:
Defendants acquitted.
Freedom of speech was non existent in the country before 1900. There were small efforts at
reform made by the La Solidaridad. The Malolos Constitution, on the other hand, guaranteed
freedom of speech.
During the U.S. period, President McKinley himself laid down the tenet Magna Charta of
Philippine Liberty when he wrote, “that no law shall be passed abridging the freedom of speech
or of the press or of the rights of the people to peaceably assemble and petition the Government
for a redress of grievances." This was in the Philippine Bill.
In the Amrican cases it was held, there were references to “public opinion should be the constant
source of liberty and democracy.” It also said “the guaranties of a free speech and a free press
include the right to criticize judicial conduct. The administration of the law is a matter of vital
public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper
comment. If the people cannot criticize a justice of the peace or a judge the same as any other
public officer, public opinion will be effectively muzzled. Attempted terrorization of public
opinion on the part of the judiciary would be tyranny of the basest sort.”
“It is a duty which every one owes to society or to the State to assist in the investigation of any
alleged misconduct. It is further the duty of all who know of any official dereliction on the part
of a magistrate or the wrongful act of any public officer to bring the facts to the notice of those
whose duty it is to inquire into and punish them.”
The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. Petition means that any person or group of
persons can apply, without fear of penalty, to the appropriate branch or office of the government
for a redress of grievances. The persons assembling and petitioning must, of course, assume
responsibility for the charges made.
Public policy has demanded protection for public opinion. The doctrine of privilege has been the
result of this. Privilged communications may in some instances afford an immunity to the
slanderer. Public policy is the “unfettered administration of justice.”
Privilege is either absolute or qualified. Qualified privilege is prima facie which may be lost by
proof of malice. This is apparent in complaints made in good faith against a public official’s
conduct having a duty in the matter. Even if the statements were found to be false, the protection
of privilege may cover the individual given that it was in good faith. There must be a sense of
duty and not a self-seeking motive.
A communication made bona fide upon any subject-matter in which the party communicating
has an interest, or in reference to which has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable.
In the usual case malice can be presumed from defamatory words. Privilege destroys that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home
to the defendant the existence of malice as the true motive of his conduct. Falsehood and the
absence of probable cause will amount to proof of malice.
It is true that the particular words set out in the information, if said of a private person, might
well be considered libelous per se. The charges might also under certain conceivable conditions
convict one of a libel of a government official. As a general rule words imputing to a judge or a
justice of the peace dishonesty or corruption or incapacity or misconduct touching him in his
office are actionable. But as suggested in the beginning we do not have present a simple case of
direct and vicious accusations published in the press, but of charges predicated on affidavits
made to the proper official and thus qualifiedly privileged. Express malice has not been proved
by the prosecution. Further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office existed is apparent.
The ends and the motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the privilege. These respectable
citizens did not eagerly seize on a frivolous matter but on instances which not only seemed to
them of a grave character, but which were sufficient in an investigation by a judge of first
instance to convince him of their seriousness. No undue publicity was given to the petition. The
manner of commenting on the conduct of the justice of the peace was proper.

People v. Alarcon

FACTS:
As an aftermath of the decision rendered by the Court of first Instance of Pampanga in criminal
case No. 5733, The People of the Philippines vs. Salvador Alarcon, et al., convicting the accused
therein — except one — of the crime of robbery committed in band, a denunciatory letter, signed
by Luis M. Taruc, was addressed to His Excellency, the President of the Philippines. A copy of
said letter found its way to the herein respondent, Federico Mañgahas who, as columnist of the
Tribune, a newspaper of general circulation in the Philippines, quoted the letter in an article
published by him in the issue of that paper of September 23, 1937.

On 29 September 1937, the provincial fiscal of Pampanga filed with the Court of First Instance
of that province to cite Federico Mangahas for contempt. On the same date, the lower court
ordered Mangahas to appear and show cause. Mangahas appeared and filed an answer, alleging,
among others, that “the publication of the letter in question is in line with the constitutional
Narratives (Berne Guerrero) guarantee of freedom of the press.”
ISSUE:
Whether the trial court properly cited Mangahas for contempt inasmuch as the robbery-in-band
case is still pending appeal.

HELD:
Newspaper publications tending to impede, obstruct, embarrass, or influence the courts in
administering justice in a pending suit or proceeding constitutes criminal contempt, which is
summarily punishable by the courts. The rule is otherwise after the cause is ended. It must,
however, clearly appear that such publications do impede, interfere with, and embarrass the
administration of justice before the author of the publications should be held for contempt. What
is thus sought to be shielded against the influence of newspaper comments is the all-important
duty of the court to administer justice in the decision of a pending case.

Contempt of court is in the nature of a criminal offense (Lee Yick Hon vs. Collector of Customs,
41 Phil., 548), and in considering the probable effects of the article alleged to be contemptuous,
every fair and reasonable inference consistent with the theory of defendant's innocence will be
indulged (State v. New Mexican Printing Co., 25 N. M., 102, 177 p. 751), and where a
reasonable doubt in fact or in law exists as to the guilt of one of constructive contempt for
interfering with the due administration of justice the doubt must be resolved in his favor, and he
must be acquitted.

Ayer Productions v. Capulong

SHORT VERSION:
FACTS:
Petitioner McElroy and his movie production wanted to make a movie out of the EDSA
Revolution. 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. Petitioners acceded to this demand and the name of
Enrile was deleted from the movie script. However, Enrile filed a complaint invoking his right to
privacy.

HELD:
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. 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.

LONG VERSION
FACTS:
Petitioner McElroy an Australian film maker, and his movie production company, Ayer
Productions, envisioned, sometime in 1987, for commercial viewing and for Philippine and
international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed
motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as and other
government agencies consulted. Ramos also signified his approval of the intended film
production.

It is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama"

style, creating four fictional characters interwoven with real events, and utilizing actual
documentary footage as background. David Williamson is Australia's leading playwright and
Professor McCoy (University of New South Wales) is an American historian have developed a
script.

Enrile declared that he will not approve the use, appropriation, reproduction and/or exhibition of
his name, or picture, or that of any member of his family in any cinema or television production,
film or other medium for advertising or commercial exploitation. petitioners acceded to this
demand and the name of Enrile was deleted from the movie script, and petitioners proceeded to
film the projected motion picture. However, a complaint was filed by Enrile invoking his right to
privacy. RTC ordered for the desistance of the movie production and making of any reference to
plaintiff or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears substantial or marked resemblance to Enrile. Hence the appeal.

ISSUE:
Whether or Not freedom of expression was violated. - Yes

HELD:
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.
Borjal v. CA
FACTS:
A civil action for damages based on libel was filed before the court against Borjal and Soliven
for writing and publishing articles that are allegedly derogatory and offensive against Francisco
Wenceslao, attacking among others the solicitation letters he send to support a conference to be
launch concerning resolving matters on transportation crisis that is tainted with anomalous
activities. Wenceslao however was never named in any of the articles nor was the conference he
was organizing. The lower court ordered petitioners to indemnify the private respondent for
damages which was affirmed by the Court of Appeals. A petition for review was filed before the
SC contending that private respondent was not sufficiently identified to be the subject of the
published articles.

ISSUE:
Whether or not there are sufficient grounds to constitute guilt of petitioners 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. These requisites have not been complied with in the
case at bar. The element of identifiability was not met since it was Wenceslao who revealed he
was the organizer of said conference and had he not done so the public would not have known.

The concept of privileged communications is implicit in the freedom of the press and that
privileged communications must be protective of public opinion. Fair commentaries on matters
of public interest are privileged and constitute a valid defense in an action for libel 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.

The questioned article dealt with matters of public interest as the declared objective of the
conference, the composition of its members and participants, and the manner by which it was
intended to be funded no doubt lend to its activities as being genuinely imbued with public
interest. Respondent is also deemed to be a public figure and even otherwise is involved in a
public issue. The court held that freedom of expression is constitutionally guaranteed and
protected with the reminder among media members to practice highest ethical standards in the
exercise thereof.
NOTES:
A privileged communication may be either:
1. Absolutely privileged communication  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.

2. Qualifiedly privileged communications  those containing defamatory imputations are not

actionable unless found to have been made without good intention justifiable motive. To this
genre belong "private communications" and "fair and true report without any comments or
remarks."

Reyes v. Bagatsing

FACTS:
Retired Justice JBL Reyes in behalf of the members of the Anti-Bases Coalition sought a permit
to rally from Luneta Park until the front gate of the US embassy which is less than two blocks
apart. The permit has been denied by then Manila mayor Ramon Bagatsing. The mayor claimed
that there have been intelligence reports that indicated that the rally would be infiltrated by
lawless elements. He also issued City Ordinance No. 7295 to prohibit the staging of rallies
within the 500 feet radius of the US embassy. Bagatsing pointed out that it was his intention to
provide protection to the US embassy from such lawless elements in pursuant to Art. 22 of the
Vienna Convention on Diplomatic Relations. And that under our constitution we “adhere to
generally accepted principles of international law”.

ISSUES:
Whether or not a treaty may supersede provisions of the Constitution.

Whether or not the rallyists should be granted the permit.

HELD:
I. No. Indeed, the receiving state is tasked for the protection of foreign diplomats from any
lawless element. And indeed the Vienna Convention is a restatement of the generally accepted
principles of international law. But the same cannot be invoked as defense to the primacy of the
Philippine Constitution which upholds and guarantees the rights to free speech and peacable
assembly. At the same time, the City Ordinance issued by respondent mayor cannot be invoked
if the application thereof would collide with a constitutionally guaranteed rights.

II. Yes. The denial of their rally does not pass the clear and present danger test. The mere
assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. In this
case, no less than the police chief assured that they have taken all the necessary steps to ensure a
peaceful rally. Further, the ordinance cannot be applied yet because there was no showing that
indeed the rallyists are within the 500 feet radius (besides, there’s also the question of whether or
not the mayor can prohibit such rally – but, as noted by the SC, that has not been raised an an
issue in this case).
NOTES:
Guidelines for issuance of permit:
1. Applicants should inform the authority of the date, public place, and time of assembly
2. If at a private place, the consent of the owner or that entitled to its legal possession is required
3. The clear and present danger test must be applied
4. If authority believes there is clear and present danger, the applicants must be heard on the
matter
5. The decision must be transmitted to the applicants at the earliest opportunity
6. Applicants have recourse to the proper judicial authority

Pita v. CA

SHORT VERSION:
FACTS:
Special Anti-Narcotics Group, and the Manila Police, seized and confiscated from dealers along
Manila sidewalks, magazines believed to be obscene and burned them. One of the publications
was Pinoy Playboy published by Leo Pita. Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials but admitted that these were surrendered by the stall
owners and the establishments were not raided.

HELD:
If they are not exactly used for art’s sake, but for commercial purposes, they are not entitled to
constitutional protection. The courts must intervene in the determination whether a material is
obscene; it cannot be left to the discretion of the police. There must always be a court order.

NOTES:
Pita procedure on sexually explicit expression when authorities seek to seize materials for being
obscene:
1. Authorities must apply for a search warrant
2. They must convince the judge that the materials to be seized are obscene, and pose a clear and
present danger
3. The judge must determine whether or not the materials are obscene, to be resolved on a case-
to-case basis and through the judge’s discretion.
4. If, in the court’s opinion, probable cause exits, it may issue the search warrant
5. Authorities may sue under Art. 201 of the PRC
6. Any conviction is subject to appeal. The appellate court may assess whether or not the
properties seized are indeed obscene

LONG VERSION:
FACTS:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City
of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary
Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized
and confiscated from dealers, distributors, newsstand owners and peddlers along Manila
sidewalks, magazines, publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in public at the University belt
along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and
members of various student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and
co-edited by plaintiff Leo Pita.

Plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction
against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of
the City of Manila, seeking to enjoin said defendants and their agents from confiscating
plaintiff’s magazines or from preventing the sale or circulation thereof claiming that the
magazine is a decent, artistic and educational magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of freedom of speech and of the press.
Plaintiff also filed an Urgent Motion for issuance of a temporary restraining order against
indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction. The Court granted the temporary
restraining order. The case was set for trial upon the lapse of the TRO. RTC ruled that the seizure
was valid. This was affirmed by the CA.

ISSUE:
Whether or Not the seizure violative of the freedom of expression of the petitioner.

HELD:
Freedom of the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive to public morals, as indeed we have laws punishing the
author, publishers and sellers of obscene publications. However, It is easier said than done to
say, that if the pictures here in question were used not exactly for art's sake but rather for
commercial purposes, the pictures are not entitled to any constitutional protection. Using the
Kottinger rule: the test of obscenity is "whether the tendency of the matter charged as obscene, is
to deprave or corrupt those whose minds are open to such immoral influences and into whose
hands a publication or other article charged as being obscene may fall." Another is whether it
shocks the ordinary and common sense of men as an indecency. Ultimately "whether a picture is
obscene or indecent must depend upon the circumstances of the case and that the question is to
be decided by the "judgment of the aggregate sense of the community reached by it." The
government authorities in the instant case have not shown the required proof to justify a ban and
to warrant confiscation of the literature First of all, they were not possessed of a lawful court
order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a
search and seizure, by way of a search warrant. The court provides that the authorities must
apply for the issuance of a search warrant from a judge, if in their opinion an obscenity seizure is
in order and that;

1. The authorities must convince the court that the materials sought to be seized are obscene and
pose a clear and present danger of an evil substantive enough to warrant State interference and
action;
2. The judge must determine whether or not the same are indeed obscene. The question is to be
resolved on a case-to-case basis and on the judge’s sound discretion;
Social Weather Stations v. Comelec

SHORT VERSION:
FACTS:
Petitioner SWS and KPC states that it wishes to conduct an election survey throughout the period
of the elections and release to the media the results of such survey as well as publish them
directly. Petitioners argue that the restriction on the publication of election survey results
constitutes a prior restraint on the exercise of freedom of speech without any clear and present
danger to justify such restraint.

ISSUE:
Are the Comelec Resolutions prohibiting the holding of pre-polls and exit polls and the
dissemination of their results through mass media, valid and constitutional?

HELD:
No. The Court held that Section (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.
It has been held that "[mere] legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities, but be insufficient
to justify such as diminishes the exercise of rights so vital to the maintenance of democratic
institutions.”

LONG VERSION:
FACTS:
Petitioner, 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, petitioner Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news- worthy items of information
including election surveys Petitioners brought this action for prohibition to enjoin the
Commission on Elections from enforcing §5.4 of RA. No.9006 (Fair Election Act), which
provides: Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be- fore an
election. Petitioner 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. Petitioner Kamahalan Publishing Corporation, on the
other hand, states that it intends to publish election survey results up to the last day of the
elections on May 14, 2001

ISSUE:
WON §5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.

HELD:
What test should then be employed to determine the constitutional validity of §5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien: [A]
Government regulation is sufficiently justified [1] if it is within the constitutional power of the
Government; [2] if it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater
than is essential to the furtherance of that interest. This is so far the most influential test for
distinguishing content-based from content neutral regulations and is said to have "become
canonical in the review of such laws." is noteworthy that the O 'Brien test has been applied by
this Court in at least two cases First. 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 Even if the governmental interest
sought to be promoted is unrelated to the suppression of speech and the resulting restriction of
free expression is only incidental, §5.4 nonetheless 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 last-minute 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 To summarize then, 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.