Consti 2 DP - November 7

7/27/2019 Consti 2 DP - November 7

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DIGESTS FOR NOVEMBER 7, 2012

ART III - BILL OF RIGHTSSection 4Freedom of Expression and Assembly and Petition

Freedom of Expression

Near v. Minnesota (238 U.S. 697) (PABALAN)

Facts:A complaint alleged that the defendants published and circulated editions of THE SATURDAYPRESS(published in Minneapolis) which were 'largely devoted to malicious, scandalous and defamatoryarticles'(based on Session Laws of Minnesota). The articles charged provides that a Jewish gangsterwas in control of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcing officersand agencies were not energetically performing their duties. Most of the charges were directed againstthe chief of police; he was charged with gross neglect of duty, illicit relations with gangsters, and withparticipation in graft. The county attorney was charged with knowing the existing conditions and withfailure to take adequate measures to remedy them. The mayor was accused of inefficiency anddereliction. One member of the grand jury was stated to be in sympathy with the gangsters. A specialgrand jury and a special prosecutor were demanded to deal with the situation in general, and, inparticular, to investigate an attempt to assassinate one Guilford, one of the original defendants, who, itappears from the articles, was shot by gangsters after the first issue of the periodical had beenpublished. Now defendants challenged the Minnesota statute PUBLIC NUISANCE LAW OF 1925 a.k.a.

the "gag law" which provides for the abatement, as a public nuisance, of a malicious, scandalous anddefamatory news paper, magazine or other periodical. The District Court ruled against defendants.Hence the appeal.

Issue:Whether or Not the proceeding authorized by the statute herein constitutes an infringement of thefreedom of the press.

Held:Yes. The U.S. Supreme Court, for the first time, ruled that previous restraint of the press wasunconstitutional. The insistence that the statute is designed to prevent the circulation of scandal whichtends 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 statutesfor libel do not result in 'efficient repression or suppression of the evils of scandal.' The statute not onlyoperates to suppress the offending newspaper or periodical, but to put the publisher under an effectivecensorship.

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, hemust 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 itsabuse.' Public officers, whose character and conduct remain open to debate and free discussion in thepress, find their remedies for false accusations in actions under libel laws providing for redress andpunishment, 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 aninvasion of the constitutional immunity against restraint. Nor can it be said that the constitutional freedomfrom 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 courthas said, on proof of truth.

Gonzales v. Comelec (27 SCRA 1[1992]) (RAMOS)

Facts:

On June 17, 1967 RA 4880 took effect , the said RA prohibits the too early nomination of

candidates and limiting the period of election campaign or partisan political activity was

challenged on constitutional grounds.

Specifically, the basic liberties of free speech, press, freedom of assembly and

freedom of association are invoked to nullify the act

At the time of the filing the petition, Cabigao (petitioner) was an incumbent councilor in the 4thDistrict of Manila and Nacionalista Pary official candidate for Vice-Mayor of Manila(subsequently elected on Novembet 11, 1967)

Petitioner Gonzales is a private individual, registered voter in Manila Cityand a politicalleader of his co-petitioner.

Further allegation was brought up which is the nomination of a candidate and the fixing ofperiod of election campaign are matters of political expediency and convenience which onlypolitical parties can regulate or curtail by and among themselves through self-restraint ormutual understanding or agreement and that the regulation and limitation of these politicalmatters 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 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, ofassembly and of association.

Hejustified its enactment under the clear and present danger doctrine, there being the

substantive evil of elections, whether for national or local officials, being debased anddegraded by unrestricted campaigning, excess of partisanship and undue concentration inpolitics 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 theact was based on the police power of the state.

Issue: WON RA No. 4880 is unconstitutional

Held:

We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it is not always possible, even withthe utmost sympathy shown for the legislative choice of means to cure an admitted evil, thatthe legislative judgment arrived at, with its possible curtailment of the preferred freedoms,be accepted uncritically.


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There may be times, and this is one of them, with the majority, with all due reject to acoordinate branch, unable to extend their approval to the aforesaid specific provisions of oneof the sections of the challenged statute. The necessary two-third vote, however, notbeing obtained, there is no occasion for the power to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot bedeclared unconstitutional.Petition is dismissed.

National Press Club v. Comelec (207 SCRA 1 [1992]) (SASAKI)

FACTS:

Petitioners:1. representatives of the mass media which are prevented from selling or donating

space and time for political advertisements;2. two (2) individuals who are candidates for office (one for national and the other for

provincial office) in the coming May 1992 elections;3.

taxpayers and voters who claim that their right to be informed of election issuesand of credentials of the candidates is being curtailed.

Petitioners argument:

Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional guaranteescomprising freedom of expression.

The prohibition imposed by Section 11 (b) amounts to censorship, because it selects andsingles out for suppression and repression with criminal sanctions, only publications of aparticular content, namely, media-based election or political propaganda during the electionperiod of 1992.

The prohibition is in derogation of media's role, function and duty to provide adequatechannels of public information and public opinion relevant to election issues.

Section 11 (b) abridges the freedom of speech of candidates, and that the suppression ofmedia-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 bringabout a substantial reduction in the quantity or volume of information concerning candidatesand issues in the election thereby curtailing and limiting the right of voters to information andopinion.

Section 11(b), RA 6646:

Sec. 11 Prohibited Forms of Election Propaganda. In addition to the forms ofelection propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, itshall be unlawful;

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b) for any newspapers, radio broadcasting or television station, other massmedia, or any person making use of the mass media to sell or to give free ofcharge print space or air time for campaign or other political purposes except tothe Commission as provided under Sections 90 and 92 of Batas Pambansa Blg.881.Any mass media columnist, commentator, announcer or personality who is acandidate for any elective public office shall take a leave of absence from his workas such during the campaign period. (Emphasis supplied)

BP 881:

Sec. 90. Comelec space. The Commission shall procure space in at least onenewspaper of general circulation in every province or city: Provided, however, Thatin the absence of said newspaper, publication shall be done in any other magazineor periodical in said province or city, which shall be known as "Comelec Space"wherein candidates can announce their candidacy. Said space shall be allocated,free of charge, equally and impartially by the Commission among allcandidates within the area in which the newspaper is circulated.

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Sec. 92. Comelec time. The Commission shall procure radio and televisiontime to be known as "Comelec Time" which shall be allocatedequally and impartially among the candidates within the area of coverage of allradio and television stations. For this purpose, the franchise of all radiobroadcasting and television stations are hereby amended so as to provide radio ortelevision time, free of charge, during the period of the campaign. (Emphasissupplied)

ISSUE:W/N section 11(b) of RA 6646 i s constitutional.

HELD:Yes!

The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of richand poor candidates by preventing the former from enjoying the undue advantage offered by hugecampaign "war chests." Section 11 (b) prohibits the sale or donation of print space and air time "forcampaign or other political purposes" except to the Commission on Elections ("Comelec"). Upon theother hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure "Comelecspace" in newspapers of general circulation in every province or city and "Comelec time" on radio andtelevision stations. Further, the Comelec is statutorily commanded to allocate "Comelec space" and"Comelec time" on a free of charge, equal and impartial basis among all candidates within the areaserved by the newspaper or radio and television station involved.


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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 (Article III [4], Constitution) has to be taken inconjunction with Article IX (C) (4) which may be seen to be a special provision applicable during aspecific limited period i.e., "during the election period." It is difficult to overemphasize the specialimportance of the rights of freedom of speech and freedom of the press in a democratic polity, inparticular when they relate to the purity and integrity of the electoral process itself, the process by whichthe people identify those who shall have governance over them. Thus, it is frequently said that theserights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speechand free press are not unlimited rights for they are not the only important and relevant values even in the

most democratic of polities. 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 animportant value. One of the basic state policies given constitutional rank by Article II, Section 26 of theConstitution 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 limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is notunduly repressive or unreasonable.

Adiong v. Comelec (207 SCRA 712 [1992]) (SUNGA)

Pita v. Court of Appeals (178 SCRA 362 [1989]) (SUPAPO)

SYNOPSIS: All material readings believed to be obscene, pornographic and indecent, among thepublications was the Pinoy playboy magazines, were seized and confiscated by policemen from dealers,distributors, and newsstand along C.M. Recto, Manila in accordance with Anti-Smut Campaign initiatedby Manila Mayor Bagatsing. All materials seized were burned. Pita, publisher of said magazine,questioned the legality of said seizure. Pita filed an injunction case seeking to enjoin and/or restrainpolicemen from confiscating his magazines or from otherwise preventing the sale or circulation thereofclaiming that the magazine is a decent, artistic and educational magazine which is not per se obscene.The RTC and CA dismissed the case. Thus, elevated the case to the SC. The SC held that the seizurewas unconstitutional as it was not supported by a lawful court order finding said materials to bepornography and authorizing them to carry out search and seizure through search warrant. The petitionis granted. The decision of the respondent court is reversed and set aside.

DOCTRINES:Press Freedom; Whether the tendency of the matter charged as obscene is to deprave or corrupt thosewhose minds are open to such immoral influences and into whose hands a publication or other articlecharged as being obscene may fall is the test in determining the existence of obscenity.

Same; If the pictures here in question were used not exactly for arts sake but rather for commercialpurposes, the pictures are not entitled to any constitutional protection.

Same; There is no challenge on the right of the State in the legitimate exercise of police power tosuppress smutprovided it is smut.

Same; Immoral lore or literature comes within the ambit of free expression although not its protection;Burden to show the existence of grave and imminent danger that would justify adverse action lies on theauthorities.

Same; Clear and Present Danger Rule; There must be objective and convincing, not subjective orconjectural, proof of the existence of such clear and present danger.

FACTS:Leo PIta, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court

of Appeals, rejecting his appeal from the decision of the RTC, dismissing his complaint for injunctiverelief. He invokes, in particular, the guaranty against unreasonable searches and seizures of theConstitution, as well as its prohibition against deprivation of property without due process of law.

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Manila Mayor R.D.Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western PoliceDistrict, 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 readingmaterials believed to be obscene, pornographic and indecent and later burned the seized materials inpublic at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing andseveral 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.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ ofpreliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of WesternPolice District of the City of Manila, seeking to enjoin and/or restrain said defendants and their agentsfrom confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereofclaiming 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 thepress.

The defendant pointed out that in that anti- smut campaign conducted on December 1 and 3, 1983, thematerials confiscated belonged to the magazine stand owners and peddlers who voluntarily surrenderedtheir reading materials, and that the plaintiffs establishment was not raided.

On January 5,1984, Pita filed his Memorandum in support of the issuance of the writ of preliminaryinjunction, raising the issue as to "whether or not the defendants and/or their agents can without a courtorder confiscate or seize plaintiffs magazine before any judicial finding is made on whether saidmagazine is obscene or not".

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows: Wecannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscenepublications or materials deserve close scrutiny because of the constitutional guaranteeprotecting the right to express oneself in print (Sec. 9, Art. IV), and the protection afforded by theconstitution against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equallyconceded, however, that freedom of the press is not without restraint as the state has the right to


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protect society from pornographic literature that is offensive to public morals, as indeed we havelaws punishing the author, publishers and sellers of obscene publications.

ISSUE:WON the seizure and confiscation of said magazines were unconstitutional as it violates freedom ofspeech and of the press.

HELD:Yes.

The Court states at the outset that it is not the first time that it is being asked to pronounce what"obscene" means or what makes for an obscene or pornographic literature. Early on, in People vs.Kottinger, the Court laid down the test, in determining the existence of obscenity, as follows:"whether the tendency of the matter charged as obscene, is to deprave or corrupt those whoseminds are open to such immoral influences and into whose hands a publication or other articlecharged as being obscene may fall." "Another test," so Kottinger further declares, "is that whichshocks the ordinary and common sense of men as an indecency. " Kottinger hastened to say,however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of thecase, and that ultimately, the question is to be decided by the "j udgment of the aggregate sense of thecommunity reached by it."

As the Court declared, the issue is a complicated one, in which the fine l ines have neither been drawnnor divided. It is easier said than done to say, indeed, 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 anyconstitutional protection.

In a much later decision, Gonzalez v. Kalaw Katigbak, the Court, following trends in the United States,adopted the test: "Whether to the average person, applying contemporary standards, the dominanttheme of the material taken as a whole appeals to prurient interest." Kalaw-Katigbak represented amarked departure from Kottingerin the sense that it measured obscenity in terms of the "dominanttheme" of the work, rather than isolated passages, which were central to Kottinger(although both casesare agreed that "contemporary community standards" are the final arbiters of what is "obscene"). Kalaw-Katigbakundertook moreover to make the determination of obscenity essentially a j udicial question andas a consequence, to temper the wide discretion Kottingerhad given unto law enforcers.

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed

to the reluctance of the courts to recognize the constitutional dimension of the problem . 27Apparently,the courts have assumed that "obscenity" is not included in the guaranty of free speech, an assumptionthat, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, ifvague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that thisdevelopment has reached a state of rest, or that it will ever do so until the Court recognizes that obscenespeech is speech nonetheless, although it i s subject as in all speech to regulation in the interestsof [society as a whole] but not in the interest of a uniform vision of how human sexuality should beregarded and portrayed."

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of policepower, to suppress smut provided it is smut. For obvious reasons, smut is not smut simply because oneinsists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging influences,and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades

ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence werecensored in the thirties yet their works are considered important literature today. Goya's La Majadesnuda was once banned from public exhibition but now adorns the world's most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we saidearlier, it is the divergent perceptions of men and women that have probably compounded the problemrather than resolved it.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not

its protection. In free expression cases, this Court has consistently been on the side of the exercise ofthe right, barring a "clear and present danger" that would warrant State interference and action. But, sowe asserted in Reyes v. Bagatsing, "the burdento show the existence of grave and imminent dangerthat would justify adverse action ... lies on the. . . authorit[ies]."

"There must be objective and convincing, not subjective or conjectural, proof of the existence of suchclear and present danger." "It is essentialfor the validity of ... previous restraint or censorship that the ...authority does not rely solely on his own appraisal of what the public welfare, peace or safety mayrequire."

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear andpresent danger test."

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we mayarrive at one-but rather as a serious attempt to put the question in its proper perspective, that is, as agenuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due processand illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, thepresumption is that the speech may validly be said. The burden is on the State to demonstrate theexistence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify Stateaction to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must

come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justifya ban and to warrant confiscation of the literature for which mandatory injunction had beensought below.First of all, they were not possessed of a lawful court order: (1) finding the saidmaterials to be pornography, and (2) authorizing them to carry out a search and seizure, by wayof a search warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as thestate has the right to protect society from pornographic literature that is offensive to publicmorals." Neither do we. But it brings us back to square one: were the "li terature" so confiscated"pornographic"? That we have laws punishing the author, publisher and sellers of obscence


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publications is also fine, but the question, again, is: Has the petitioner been found guilty under thestatute?

We make this resume.1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, anobscenity rap is in order;2. The authorities must convince the court that the materials sought to be seized are "obscene", andpose 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;6. Any conviction is subject to appeal. The appellate court may assess whether or not the propertiesseized are indeed "obscene".

DISPOSITION: WHEREFORE, the petition is GRANTED. The decision of the respondent court isREVERSED and SET ASIDE. It appearing, however, that the magazines subject of the search andseizure have been destroyed, the Court declines to grant affirmative relief. To that extent, the case ismoot and academic.

U.S. v. Bustos (37 PHIL. 731 [1918]) (TABAG)

Facts:In 1915, 34 Pampanga residents signed a petition to the Executive Secretary regarding charges againstRoman Punsalan, the justice of the peace of Macabebe and Masantol, Pampanga. They wanted to ousthim 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 himguilty.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 wasnt 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 sufferimprisonment in case of insolvency.The defendants filed a motion for a retrial to retire the objection made by Punsalan. The trial courtdenied 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 privileged3. Error in not acquitting defendants4. 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 prosecutions objection to the introduction in evidence by the accused of theaffidavits 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 theircounsel to the admission in evidence of the expediente administrativo out of which the accusation in thiscase arose.

Issue:

Whether or not the defendants and appellants are guilty of a libel against Roman Punsalan, justice of thepeace in Pampanga.

Held:Yes. Defendants acquitted.

Ratio:Freedom of speech was non existent in the country before 1900. There were small efforts at reformmade by the La Solidaridad. The Malolos Constitution, on the other hand, guaranteed freedom ofspeech.

During the U.S. period, President McKinley himself laid down the tenet Magna Charta of PhilippineLiberty when he wrote, that no law shall be passed abridging the freedom of speech or of the press or ofthe 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 sourceof liberty and democracy. It also said the guaranties of a free speech and a free press include the rightto criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether thelaw 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 beeffectively muzzled. Attempted terrorization of public opinion on the part of the judiciary would be tyrannyof the basest sort.

It is a duty which every one owes to society or to the State to assist in the investigation of any allegedmisconduct. It is further the duty of all who know of any official dereliction on the part of a magistrate orthe wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquireinto and punish them.

The right to assemble and petition is the necessary consequence of republican institutions and thecomplement of the part of free speech. Assembly means a right on the part of citizens to meet peaceablyfor consultation in respect to public affairs. Petition means that any person or group of persons canapply, 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 thecharges made.

Public policy has demanded protection for public opinion. The doctrine of privilege has been the result ofthis. Privilged communications may in some instances afford an immunity to the slanderer. Public policyis the unfettered administration of justice.

Privilege is either absolute or qualified. Qualified privilege is prima facie which may be lost by proof ofmalice. This is apparent in complaints made in good faith against a public officials conduct having a dutyin the matter. Even if the statements were found to be false, the protection of privilege may cover theindividual 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 aninterest, or in reference to which has a duty, is privileged, if made to a person having a corresponding


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interest or duty, although it contained criminatory matter which without this privilege would be slanderousand 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 theexistence of malice as the true motive of his conduct. Falsehood and the absence of probable cause willamount to proof of malice.

It is true that the particular words set out in the information, if said of a private person, might well beconsidered libelous per se. The charges might also under certain conceivable conditions convict one of alibel of a government official. As a general rule words imputing to a judge or a justice of the peacedishonesty or corruption or incapacity or misconduct touching him in his office are actionable. But assuggested in the beginning we do not have present a simple case of direct and vicious accusationspublished in the press, but of charges predicated on affidavits made to the proper official and thusqualifiedly privileged. Express malice has not been proved by the prosecution. Further, although thecharges are probably not true as to the justice of the peace, they were believed to be true by thepetitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance ormisfeasance in office existed is apparent. The ends and the motives of these citizensto secure theremoval from office of a person thought to be venal were justifiable. In no way did they abuse theprivilege. These respectable citizens did not eagerly seize on a frivolous matter but on instances whichnot only seemed to them of a grave character, but which were sufficient in an investigation by a judge offirst instance to convince him of their seriousness. No undue publicity was given to the petition. Themanner of commenting on the conduct of the justice of the peace was proper.

Ayer Productions PTY Ltd. v. Capulong (160 SCRA 861 [1988]) (VELASCO)

Facts:

Hal McElroy, an Australian film maker, and his movie production company, Ayer Productions pty Ltd.,envisioned sometime in 1987, for commercial viewing and for Philippine and international release, thehistoric peaceful struggle of the Fi lipinos at EDSA. The proposed motion picture entitled "The Four DayRevolution" was endorsed by the MTRCB as well as the other government agencies consulted. FidelRamos also signified his approval of the intended film production.

The proposed motion picture would be essentially a re-enactment of the events that made possible theEDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a"docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actualdocumentary footage as background.

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 cinemaor television production, film or other medium for advertising or commercial exploitation." Petitioners

acceded to this demand and the name of private respondent Enrile was deleted from the movie script,and proceeded to film the projected motion picture.

On 23 February 1988, Enrile filed a Complaint with application for TRO and Wilt of Pretion with theRegional Trial Court. The complaint alleged that petitioners' production of the mini-series without privaterespondent's consent and over his objection, constitutes an obvious violation of his right of privacy. Thetrial court issued ex-parte a Temporary Restraining Order and set for hearing the application forpreliminary injunction.

Petitioner flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contendingthat the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family andthat a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioneralso filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet beencompleted.

The court issued a writ of Preliminary Injunction against the petitioners ordering for the desistance of themovie production and making of any reference to Enrile or his family and creating any fictitious character

in lieu of him.

A Petition for certiorari was filed to the Supreme Court.

Issue: WON there was a violation of freedom of expression.

Held: Yes.

Freedom of speech and of expression includes the freedom to film and produce motion pictures and toexhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motionpictures are a univesally utilized vehicle of communication and medium of expression. Along with thepress, radio and television, motion pictures constitute a principal medium of mass communication forinformation, education and entertainment. This freedom is available i n our country both to locally-ownedand to foreign-owned motion picture companies. Furthermore the circumstance that the production ofmotion picture films is a commercial activity expected to yield monetary profit, is not a disqualification foravailing of freedom of speech and of expression. To exclude commercially owned and operated mediafrom the exercise of constitutionally protected freedom of speech and of expression can only result in thedrastic contraction of such constitutional liberties in our country.


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In connection with the respondent's contention on right of privacy: The right of privacy or "the right to belet alone," like the right of free expression, is not an absolute right. A limited intrusion into a person'sprivacy has long been regarded as permissible where that person is a public figure and the informationsought to be elicited from him or to be published about him constitute of a public character. Succinctlyput, the right of privacy cannot be invoked to resist publication and dissemination of matters of publicinterest. The interest sought to be protected by the right of privacy is the right to be free fromunwarrantedpublicity, from the wrongfulpublicizing of the private affairs and activities of an individualwhich are outside the realm of l egitimate public concern.

Whether the "balancing of interests test" or the "clear and present danger test" be applied in respect ofthe petitions, the Court believes that a different conclusion must here be reached: The production andfilming by petitioners of the projected motion picture "The Four Day Revolution" does not, in thecircumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct restrainton the part of the respondent Judge upon the exercise of speech and of expression by petitioners. Therespondent Judge has restrained petitioners from filming and producing the entire proposed motion

picture. 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 preciselylook like. There was, in other words, no "clear and present danger" of any violation of any right to privacythat private respondent could lawfully assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government thattook place at EDSA in February 1986, and the trian of events which led up to that denouement. Clearly,such subject matter is one of public interest and concern. It does not relate to the individual life andcertainly not to the private life of private respondent Ponce Enrile. "The Four Day Revolution" is notprincipally about, nor is it focused upon, the man Juan Ponce Enrile but it is compelled, if it is to behistorical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent eventsof the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would beentailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited incharacter. The extent of that intrusion, as the Court understands the synopsis of the proposed film, maybe generally described as such intrusion as is reasonably necessary to keep that film a truthful historicalaccount.

4. At all relevant times, during which the momentous events that petitioners propose to film were takingplace, private respondent was a public figure. The right of privacy of a "public figure" is necessarily

narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simpleprivate citizenship. He continues to be a "public figure." After a successful political campaign duringwhich his participation in the EDSA Revolution was directly or indirectly referred to in the press, radioand television, he sits in a very public place, the Senate of the Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom ofspeech and of expression and the right of privacy, may be marked out in terms of a requirement that theproposed motion picture must be fairly truthful and historical in its presentation of events.

Lopez v. Court of Appeals (34 SCRA 116 [1970]) (VILLAFUERTE)

Summary: The pictures of a former mayor of Sta. Maria, Bulacan, also a businessman and contractor,was inadvertently published and mistaken for another man who was a sanitary inspector and fooled theauthorities about the Babuyan Islands, claiming of murders there, so they could go and he could berescued. An erratum was published by the This Week magazine. The Supreme Court, quotingQuisumbing v. Lopez, however, found for petitioner that the error was made inadvertently and withoutmalice, but still petitioner has been ordered to pay reduced damages, since the error in in this case could

have been checked considering that this was a weekly magazine and not a daily.

Facts: In January 1956, there appeared on the front page of The Manila Chronicle, of which petitionerEugenio Lopez was the publisher, as well as on other dailies, a news story of a sanitary inspectorassigned to the Babuyan Islands, Fidel Cruz. The story is about Fidel Cruz sending a distress signal to apassing United States Airforce plane which in turn relayed the message to Manila. He was not ignoredby an American Army plane dropping on the beach of an island an emergency-sustenance kitcontaining, among other things, a two-way radio set. He utilized it to inform authorities in Manila that thepeople 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 ledby 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, whomerely wanted transportation home to Manila. In view of this finding, Major Wilfredo Encarnacionbranded as a "hoax," to use his own descriptive word, the report of Fidel Cruz. That was the termemployed by the other newspapers when referring to the above-mentioned incident.

This Week Magazine of the Manila Chronicle, then edited by petitioner Juan T. Gatbonton, devoted apictorial article to it i n its issue of January 15, 1956. Mention was made that while Fidel Cruz story turnedout to be 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, food and clothing being scarce. Then in the January 29, 1956issue of This Week Magazine, the "January News Quiz" included an item on the central figure in whatwas known as the Calayan Hoax.

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 p rivate respondent FidelG. Cruz, a businessman contractor from Santa Maria, Bulacan. It turned out that the photographs ofrespondent Cruz and that of Fidel Cruz, sanitary inspector, were on file in the library of the Manila


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Chronicle in accordance with the standard procedure observed in other newspaper offices, but when thenews quiz format was prepared, the two photographs were in advertently switched.

As soon, however, as the i nadvertent error was brought to the attention of petitioners, the followingcorrection was immediately published in This Week Magazine on January 27, 1957: "While we wererushing to meet: the deadline for January 13th issue of This Week, we inadvertently published thepicture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in 'Our OwnWho's Who feature in the Year End Quiz' of This Week in lieu of the health inspector Fidel Cruz, whowas connected with a story about a murderer running loose on Calayan Island. We here express ourprofound regrets that such an error occurred." Together with the foregoing correction, petitionerspublished the picture of Fidel Cruz; the photographs and the correction moreover were enclosed by fourlines the type used was bolder than ordinary, and the item was placed in a conspicuous place in order tocall the attention of the readers to such amends being made.

Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of Manila for the recovery ofdamages alleging the defamatory character of the above publication of his picture. After trial duly had, hewas awarded five thousand pesos as actual damages, another five thousand pesos as moral damages,and one thousand pesos for attorney's fees. That judgment was affirmed on appeal to respondent Court.Hence, this petition for certiorari with the result, as already announced at the opening of this opinion, thatwhile respondent Cruz is entitled to Prevail, the damages awarded him should be reduced.

Issues:

1. Whether or not petitioner can invoke a liberal construction of the implications of press freedom,owning up to the mistake, unfortunately not discovered until it was too late, and publishing a correctionas an earnest of its good faith.

2. Whether or not that petitioner should not be made to pay at all .

Held:

1. YES

The Court ruled in favor of the plaintiff Lopez, citing a doctrine in the case Quisumbing v. Lopezwhichreads, "So long as it is done in good faith, newspapers have the legal right to have and express opinionson legal questions. To deny them that right would infringe upon the freedom of the press." In thelanguage of the then Chief Justice Paras, who penned the opinion in the said case: "The Court of

Appeals found as a fact that "there is no evidence in the record to prove that the publication of the newsitem under Consideration was prompted by personal ill will or spite, or that there was intention to doharm,' and that on the other hand there was 'an honest and high sense of duty to serve the best interestsof the public, without self-seeking motive and with malice towards none.' Every citizen of course has theright to enjoy a good name and reputation, but we do not consider that the respondents, under thecircumstances of this case, had violated said right or abused the freedom of the press. The newspapersshould 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 edition usuallyhave to race with their deadlines; and consistently with good faith and reasonable care, they should notbe held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words."

For liability to arise then without offending press freedom, there is this test to meet: "The constitutionalguarantees require, we think, a federal rule that prohibits a public official from recovering damages for adefamatory falsehood relating to his official conduct unless he proves that the statement was made with'actual malice' that is, with knowledge that it was false or with reckless disregard of whether it wasfalse or not."

2. NO.

The error in in this case could have been checked considering that this was a weekly magazine and nota daily. However, petitioner is ordered to pay reduced damages considering the correction was madepromptly.

Zaldivar v. Sandiganbayan (170 SCRA 1 [1989]) (ATIENZA)

Facts: The case stemmed from the resolution of the Supreme Court stopping the respondent, Raul

Gonzalez, from investigating graft cases involving Antique Gov. Enrique Zaldivar. The SC ruled thatsince the adoption of the 1987 Constitution, respondents powers as Tanodbayan have beensuperseded by the creation of the Office of the Ombudsman, he however becomes the SpecialProsecutor of the State, and can only conduct an investigation and file cases only when so authorized bythe Ombudsman. A motion for reconsideration was filed by the respondent wherein he includedstatements which were unrelated in the Issue raised in the Court. This include: (a)That he had beenapproached twice by a leading member of the court and he was asked to 'go slow on Zaldivar and 'not tobe too hard on him; (b) That he "was approached and asked to refrain from investigating the COA reporton illegal disbursements in the Supreme Court because 'it will embarrass the Court;" and (c) that inseveral instances, the undersigned respondent was called over the phone by a leading member of theCourt and was asked to dismiss the cases against two Members of the Court." There were alsostatements of the respondent saying that the SCs order '"heightens the people's apprehension over the

justice system in this country, especially because the people have been thinking that only the small flycan get it while big fishes go scot- free was publicized in leading newspapers.

The SC resolved to require respondent to explain in writing why he should not be punished for contemptof court for making such public statements reported in the media. Respondent then sought to get somemembers of the Court to inhibit themselves in the resolution of the Zaldivar case for alleged bias andprejudice against him. A little l ater, he in effect asked the whole Court to inhibit itself from passing uponthe Issue involved in proceeding and to pass on responsibility for this matter to the Integrated Bar of thePhilippines, upon the ground that respondent cannot expect due process from this Court, that the Courthas become incapable of judging him impartially and fairly. The Court found respondent guilty ofcontempt of court in facie curiae (in the face of court) and indefinitely suspended from the practice oflaw. Respondent assails said conviction, invoking his freedom of speech. Counsel for respondent urgesthat it is error "for this Court to apply the "visible tendency" rule rather than the "clear and presentdanger" rule in disciplinary and contempt charges."


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Issue:Whether or Not there was a violation of the freedom of speech/expression

Held:There was no violation of Freedom of Expression. The SC explains first that the respondent washeard and given the most ample opportunity to present all defences, arguments and evidence that hewanted to present for the consideration of this Court which he grounded on freedom of expression

The SC made it clear that it did not purport to announce a new doctrine of "visible tendency." It wassimply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety ofcontumacious conduct including: "any improper conduct tending, directly or indirectly, to impede,obstruct or degrade the administration of justice." The SC further explains that the"clear and presentdanger" doctrine invoked by respondent's counsel is not a magic incantation which dissolves allproblems and dispenses with analysis and judgment in the testing of the legitimacy of claims to freespeech, and which compels a court to exonerate a defendant the moment the doctrine is invoked,absent proof of impending apocalypse. The "clear and present danger" doctrine has been an acceptedmethod for marking out the appropriate limits of freedom of speech and of assembly in certain contexts.It is not, however, the only test which has been recognized and applied by courts.

From the language of the specific constitutional provision, it would appear that the right is not susceptibleof any limitation. No law may be passed abridging the freedom of speech and of the press. The realitiesof life in a complex society preclude however, a literal interpretation. Freedom of expression is not anabsolute. It would be too much to insist that all times and under all circumstances it should remainunfettered and unrestrained. There are other societal values that press for recognition.

The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion forpermissible limitation on freedom of speech and of the press, which includes such vehicles of the massmedia as radio, television and the movies, is the 'balancing-of interests test. The principle requires acourt to take conscious and detailed consideration of the interplay of interests observable in a givensituation or type of situation.

Under either the "clear and present danger" test or the "balancing-of-interest test" we believe that thestatements here made by respondent Gonzalez are of such a nature and were made in such a mannerand under such circumstances, as to transcend the permissible limits of free speech

What is here at stake is the authority of the Supreme Court to confront and prevent a "substantive evil"consisting not only of the obstruction of a free and fair hearing of a particular case but also theavoidance of the broader evil of the degradation of the judicial system of a country and the destruction ofthe standards of professional conduct required from members of the bar and officers of the courts. The"substantive evil" here involved, in other words, is not as palpable as a threat of public disorder or riotingbut is certainly no less deleterious and more far reaching in its implications for society.

Reyes v. Bagatsing (125 SCRA 553 [1983]) (BUENAVENTURA)

Facts: Petitioner sought a permit from the City of Manila to hold a peaceful march and rally on October26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta to the gates of the United StatesEmbassy. Once there, and in an open space of public property, a short program would be held. Themarch would be attended by the local and foreign participants of such conference. That would befollowed 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 the exercise of the

constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensurea peaceful march and rally. However the request was denied. Reference was made to persistentintelligence reports affirming the plans of subversive/criminal elements to infiltrate or disrupt anyassembly or congregations where a large number of people is expected to attend. Respondentsuggested that a permit may be issued if it is to be held at the Rizal Coliseum or any other enclosed areawhere the safety of the participants themselves and the general public may be ensured. An oralargument was heard and the mandatory injunction was granted on the ground that there was no showingof the existence of a clear and present danger of a substantive evil that could justify the denial of apermit. However Justice Aquino dissented that the rally is violative of Ordinance No. 7295 of the City ofManila prohibiting the holding of rallies within a radius of five hundred (500) feet from any foreign missionor 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 implicationthat 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 isthe applicant for the permit, whether an individual or a group. There can be no legal objection, absentthe existence of a clear and present danger of a substantive evil, on the choice of Luneta as the placewhere 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 beshown that such a condition is satisfied it does not follow that respondent could legally act the way hedid. 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 shouldinform the licensing authority of the date, the public place where and the time when it will take place. If itwere 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 appraisewhether there may be valid objections to the grant of the permit or to its grant but at another publicplace. It is an indispensable condition to such refusal or modification that the clear and present dangertest be the standard for the decision reached. Notice is given to applicants for the denial.

Eastern Broadcasting Corp. v. Danas, Jr. (137 SCRA 628 [1985]) (CAMERINO)

DAVID, et. al. vs. GLORIA MACAPAGAL-ARROYO, et. al., G.R. No. 171396. May 3, 2006 (DORIA)

Facts:

These 7 consolidated petitions for certiorariand prohibition allege that in i ssuing PresidentialProclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-

Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of theGovernment, in their professed efforts to defend and preserve democratic institutions, are actually


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trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuancesare void for being unconstitutional.

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I,President Arroyo issued PP 1017 declaring a state of national emergency. And on the same day, sheissued G. O. No. 5 implementing PP 1017.

do hereby command the Armed Forces of the Philippines, to maintain law and orderthroughout the Philippines, prevent or suppress all forms of lawless violence as well as anyact of insurrection or rebellion and to enforce obedience to all the laws and to all decrees,orders and regulations promulgated by me personally or upon my direction; and as providedin Section 17, Article 12 of the Constitution do hereby declare a State of NationalEmergency.

On March 3, 2006, exactly one week after the declaration of a state of national emergency andafter all these petitions had been filed, the President lifted PP 1017 through the issuance ofProclamation No. 1021.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that theproximate cause behind the executive issuances was the conspiracy among some military officers,leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition ina plot to unseat or assassinate President Arroyo. Apparently, the basis for issuance of PP1017was also due to the escape of some Magdalo members indicted in the Oakwood Mutiny; the

discovery of a document (Oplan Hackle I) which contains a detailed plan for bombings and attacksincluding the assassination of GMA during the PMA Alumni Homecoming; and other plans againstthe GMA administration. They considered the aim to oust or assassinate the President and take-over the reins of government as a clear and present danger.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.According to them, the Office of the President immediately announced the cancellation of all programsand activities related to the 20th anniversary celebration of Edsa People Power I; and revoked thepermits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales statedthat political rallies, which to the Presidents mind were organized for purposes of destabilization, arecancelled. Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including media, can already be implemented."

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups ofprotesters (members of Kilusang Mayo Uno[KMU] and National Federation of Labor Unions-KilusangMayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of convergingat the EDSA shrine. Those who were already near the EDSA site were violently dispersed by hugeclusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, watercannons, and tear gas to stop and break up the marching groups, and scatter the massed participants.That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala

Avenue and Paseo de Roxas Street in Makati City.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S.David, a professor at the University of the Philippines and newspaper columnist. Also arrested was hiscompanion, Ronald Llamas, president of party-listAkbayan. Later that day, the Daily Tribune, whichCacho-Olivares is the editor, was raided by the CIDG and they seized and confiscated anti-GMA articlesand write ups. Later still, another known anti-GMA news agency (Malaya) was raided and seized.

Petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on theemergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for theimposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, ofspeech and of assembly.

The Sol-Gen argued that the issue has become moot and academic by reason of the lifting of PP1017 by virtue of the declaration of PP 1021. The Sol-Gen also averred that PP 1017 is within thepresidents calling out power, take care power and take over power.

Issue: WON PP1017 and GO No. 5 are violative of the Constitution and WON such issue has becomemoot and academic.

Held: The issue cannot be considered as moot and academic by reason of the lifting of the questionedPP. It is still in fact operative because there are parties still affected due to the alleged violation ofthe said PP. Hence, the SC took cognition of the case at bar. The SC ruled that PP 1017 isconstitutional in part and at the same time some provisions of which are unconstitutional.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantlessarrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof thatthese petitioners were committing acts constituting lawless violence, invasion or rebellion and

violating BP 880; the imposition of standards on media or any form of prior restraint on the press,as well as the warrantless search of the Tribune offices and whimsical seizure of its articles forpublication and other materials, are declared UNCONSTITUTIONAL.

One of the misfortunes of an emergency, particularly, that which pertains to security, is that militarynecessity and the guaranteed rights of the individual are often not compatible. Our history reveals that inthe crucible of conflict, many rights are curtailed and trampled upon. Here, the right againstunreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, ofexpression, of the press, and of assembly under the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they werearrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People PowerI. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that onFebruary 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Threepolicemen were assigned to guard their office as a possible "source of destabilization." Again, thebasis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were"turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the20th Anniversary of People Power I.

G.R. No. 171396: Neither of the conditions for warrantless arrest justifies petitioner Davids arrest.During the inquest for the charges of inciting to seditionand violation of BP 880, all that the arresting


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officers could invoke was their observation that some rallyists were wearing t-shirts with theinvective "Oust Gloria Now"and their erroneous assumption that petitioner David was the leader of therally. But what made it doubly worse for petitioners David et al.is that not only was their right againstwarrantless arrest violated, but also their right to peaceably assemble.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect topublic affairs. It is a necessary consequence of our republican institution and complements the right ofspeech.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their rightto peaceful assembly. They were not committing any crime, neither was there a showing of a clear andpresent danger that warranted the limitation of that right.

G.R. No. 171409:Cacho-Olivares, et al.presents another facet of freedom of speech i.e., the freedom ofthe press. Their narration of facts, which the SG failed to refute, established the following: first,the DailyTribunesoffices were searched without warrant; second,the police operatives seized several materialsfor publication; third, the search was conducted at about 1:00 o clock in the morning of February 25,2006; fourth, the search was conducted in the absence of any official of the Daily Tribuneexcept thesecurity guard of the building; and fifth, policemen stationed themselves at the vicinity of the DailyTribuneoffices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff MichaelDefensor was quoted as saying that such raid was "meant to show a strong presence, to tell media

outlets not to connive or do anything that would help the rebels in bringing down thisgovernment." Director General Lomibao further stated that "if they do not follow the standards and thestandards are if they would contribute to instability in the government, or if they do not subscribe to whatis in General Order No. 5 and Proc. No. 1017 we will recommend a takeover." NationalTelecommunications Commissioner Ronald Solis urged television and radio networksto "cooperate"with the government for the duration of the state of national emergency. He warned thathis agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set outfor media coverage during times when the national security is threatened.

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in theconduct of search and seizure. Section 4 requires that a search warrant be issued upon probable causein connection with one specific offence to be determined personally by the j udge after examination underoath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that thesearch of a house, room, or any other premise be made in the presence of the lawful occupant thereof orany member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficientage and discretion residing in the same locality. And Section 9 states that the warrant must direct that itbe served in the daytime, unless the property is on the person or in the place ordered to be searched, inwhich case a direction may be inserted that it be served at any time of the day or night. All these ruleswere violated by the CIDG operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge of a free anddemocratic society rests in the degree of freedom enjoyed by its media.

BAYAN, et. al. vs. ERMITA, et. al., G.R. No. 169838. April 25, 2006 (EXCONDE)

Doctrine: Freedom of Expression

Sec. 4 of Art. III of the Constitution provides: No law shall be passed abridging the freedom ofspeech, of expression, or of the press, or the ri ght of the people peaceably to assemble and petition thegovernment for redress of grievances.

Petitioners come in three groups.

1st group: Bayan, et al., (G.R. No. 16983) allege that they are citizens and taxpayers of thePhils and that their rights as organizations and individuals were violated when the rally/participated (on 6Oct 2005) was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.

2ndgroup: (26 individual petitioners) Jess del Prado, et al., (G.R. No. 169848) who allegethat they were injured, arrested and detained when a peaceful mass action they led (26 Sep 2005) waspreempted and violently dispersed by the police. They asserted on 5 Oct 2005, a group they participatedin marched to Malacaang to protest issuances of the Palace which, they claim, put the country underan "undeclared" martial rule, and the protest was likewise dispersed violently and many among themwere arrested and suffered injuries.

3rdgroup: Kilusang Mayo Uno (KMU), et al ., (G.R. No. 169881) they conducted peacefulmass actions and that their rights as organizations and those of their individual members as citizens,

specifically the right to peaceful assembly, are affected by BP 880 and the policy of "CalibratedPreemptive Response" (CPR) being followed to implement it.

Respondents:

in G.R. No. 169838are Eduardo Ermita, as Executive Secretary, Manila City MayorLitoAtienza, Chief, of the Philippine National Police (PNP) Gen.Arturo Lomibao, National Capital RegionPolice Office (NCRPO) Chief, PNP Maj.Gen.Vidal Querol, and Manila Police District (MPD)Chief Gen. Pedro Bulaong.

in G.R. No. 169848are Eduardo Ermitaas Executive Secretary and in his personalcapacity;Angelo Reyes, as Secretary of the Interior and Local Governments; Arturo Lomibao, asChief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers andprivate individuals acting under their control, supervision and instruction.

in G.R. No. 169881are the Honorable Executive Secretary, PNP DirectorGeneral ArturoLomibao, the Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Gist:The right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed bythe Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publiclyassemble in the nations streets and parks. They have, in fact, purposely engaged in public assemblieswithout the required permits to press their claim that no such permit can be validly required withoutviolating the Constitutional guarantee. Respondents, on the other hand, have challenged such action ascontrary to law and dispersed the public assemblies held without the permit.


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Facts:KMU, et al., claim that a rally on 4 Oct 2005, which KMU co-sponsored was to be conducted at theMendiola bridge but police blocked them and forcibly dispersed them that caused injuries to severalmembers. And allege on 6 Oct 2005, a multi-sectoral rally which KMU also co-sponsored was scheduledalong Espaa Avenue (UST) going towards Mendiola. Police officers blocked them and prevented themfrom proceeding further. They were also forcibly dispersed, causing injuries, and some arrested.

All petitioners assail BP 880, some of them in totoand others only Sections 4, 5, 6, 12, 13(a), and 14(a),

as well as the policy of CPR. They seek to stop violent dispersals of ralliesunder the "no permit, norally" policy and the CPR policy recently announced.

A. Petitioners Bayan,et al., contend that BP 880 is a clear violation of the Constitution and other humanrights treaties (e.g. the International Covenant on Civil and Political Rights).

That B.P. No. 880 requires a permit before one can stage a public assembly regardless of thepresence or absence of a clear and present danger.

That BP 880 curtails the choice of venue and thus repugnant to the freedom of expressionclause as the time and place of a public assembly form part of the message for which theexpression is sought.

That BP 880 is not content-neutral as it does not apply to mass actions in support of thegovernment. The words "lawful cause," "opinion," "protesting or influencing" suggest theexposition of some cause not espoused by the government.

Supposedly, the phrase "maximum tolerance" shows that the law applies to assembliesagainst the government because they are being tolerated. As a content-based legislation, BP880 cannot pass the strict scrutiny test.

B. Petitioners Jess del Prado, et al., argue that B.P. 880 is unconstitutional. Its provisions are not mereregulations but are actually prohibitions.

it is a curtailment of the right to peacefully assemble and petition for redress ofgrievances because it puts a condition for the valid exercise of that right.

It also characterizes public assemblies without a permit as illegal and penalizesthem and allows their dispersal.

It delegates powers to the Mayor (Atienza) without providing clear standards. The2 standards stated in the laws (clear and present danger and imminent and gravedanger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra viresact that alters the standard ofmaximum tolerance set forth in B.P. No. 880, aside from being void for being vague and forlack of publication.

C. Petitioners KMU,et al.,argue that the Constitution sets no limits on the right to assembly, thereforeB.P. No. 880 cannot put requirement of securing a permit. And even assuming that the legislature canset limits to this right, the limits provided are unreasonable:

(1) allowing the Mayor to deny the permit on clear and convincing evidence of a clear andpresent danger is too comprehensive.

(2) the 5-day requirement to apply for a permit is too long as certain events require instantpublic assembly, otherwise interest on the issue would possibly wane.

Regarding CPR policy, they argue that it is preemptive, that the government takes actioneven before the rallyists can perform their act, and that no law, ordinance or executive ordersupports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No.880 and violates the Constitution as it causes a chilling effect on the exercise by the people ofthe right to peaceably assemble.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they hadbeen "injured, arrested or detained because of the CPR," and that "those arrested stand to becharged with violating BP 880 and other offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that thetime, place and manner regulation embodied in B.P. No. 880 violates the three-pronged testfor such a measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference tocontent of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significantgovernmental interest, i.e., the interest cannot be equally well served by a means that is lessintrusive of free speech interests; and (c) B.P. No. 880 leaves open alternative channels forcommunication of the information.6

3. B.P. No. 880 is content-neutral. Section 5 requires the statement of the public assemblystime, place and manner of conduct. It entails traffic re-routing to prevent grave publicinconvenience and serious or undue interference in the free flow of commerce and trade.Nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys programcontent or the statements of the speakers therein, except under the constitutional precept

of the "clear and present danger test."The status of B.P. No. 880 as a content-neutralregulation has been recognized in Osmea v. Comelec.7

4.Adiong v. Comelec8held that B.P. No. 880 is a content-neutral regulation of the time, placeand manner of holding public assemblies. It also held that BP 880 passes the test for suchregulation, meaning these regulations need only a substantial governmental interest tosupport them.

5. Sangalang v. Intermediate Appellate Court9held that a local chief executive has theauthority to exercise police power to meet "the demands of the common good in terms oftraffic decongestion and public convenience." Furthermore, the discretion given to the mayoris narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
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6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence thatthe public assembly will create a clear and present danger to public order, public safety,public convenience, public morals or public health" and "imminent and grave danger of asubstantive evil" both express the meaning of the "clear and present danger test."10

7. CPR is simply the responsible and judicious use of means allowed by existing laws andordinances toprotect public interest and restore public order. Thus, it is not accurate tocall it a new rule but rather it is a more pro-active and dynamic enforcement of existing laws,regulations and ordinances to prevent chaos in the streets. It does not replace the rule of

maximum tolerance in B.P. No. 880.

Respondent Mayor Atienza, submitted in his Comment that (G.R. No. 169838) should be dismissed onthe ground:

that RA 7160 gives the Mayor power to deny a permit independently of B.P. No.880;

that his denials of permits were under the "clear and present danger" rule as therewas a clamor to stop rallies, which disrupt the economy and to protect the lives of otherpeople.

On 14 Feb 2006, the 3 petitions were ordered consolidated.

Issue:1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a)and 14(a) thereof, and Republic Act No. 7160:

(a) Are these content-neutral or content-based regulations? (no)(b) Are they void on grounds of overbreadth or vagueness? (no)(c) Do they constitute prior restraint? (no)(d) Are they undue delegations of powers to Mayors? (no)(e) Do they violate international human rights treaties and the UniversalDeclaration of Human Rights? (No)

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response(CPR):

(a) Is the policy void on its face or due to vagueness?(b) Is it void for lack of publication?(c) Is the policy of CPR void as applied to the rallies of September 26 and October4, 5 and 6, 2005?

Ratio:

B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; itmerely regulates the use of public places as to the time, place and manner of assemblies. Far frombeing insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation tothe mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound"clear and present danger" standard. (in Osmea v. Comelec,where the Court referred to it as a"content-neutral" regulation of the time, place, and manner of holding public assemblies.)

A fair and impartial reading of B.P. No. 880 shows that it refers to allkinds of public assemblies thatwould use public places. The reference to "lawful cause" does not make it content-based becauseassemblies really have to be for lawful causes, otherwise they would not be "peaceable" and entitled toprotection. Neither are the words "opinion," "protesting" and "influencing" in the definition of publicassembly content based, since they can refer to any subject. The words "petitioning the government forredress of grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally,maximum tolerance is for the protection and benefit of all rallyists and is independent of the content ofthe expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order,public safety, public convenience, public morals or public health. This is a recognized exception to theexercise of the right even under the Universal Declaration of Human Rights and the InternationalCovenant on Civil and Political Rights, thus:

No question as to the petitioners rights to peaceful assembly to petition the government for a redress ofgrievances and, for that matter, to organize or form associations for purposes not contrary to law, as wellas to engage in peaceful concerted activities. These rights are guaranteed by no less than theConstitution. Jurisprudence abounds with hallowed pronouncements defending and promoting thepeoples exercise of these rights. However, it must be remembered that the right, while sacrosanct, isnot absolute.

On the matter of CPR: The Solicitor General agreed with the observation of the Chief Justice that CPR

should no longer be used as a legal term. As it only means nothing other than the maximum tolerancepolicy set in BP 880. It was merely a "catchword" intended to clarify what was thought to be amisunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in theaffidavit executed by Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does notreplace B.P. No. 880 and the maximum tolerance policy embodied in that law.

Ruling:

1. petitions are GRANTEDin part2. Respondents / particularly the Secretary of the Interior and Local Governments,

are DIRECTEDto take all necessary steps for the immediate compliance with (Section 15 ofBP 88) the establishment or designation of at least one suitable freedom park or plaza in

every city and municipality of the country.

Safeguarding liberty by giving local governments a deadline of 30 days within which todesignate specific freedom parks as provided under B.P. No. 880. If, after that period, nosuch parks are so identified, allpublic parks and plazas of the municipality or city concernedshall in effect be deemed freedom parks; no prior permit of whatever kind shall be required tohold an assembly therein. The only requirement will be written notices to the police and themayors office to allow proper coordination and orderly activities.

2. Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be inlieu of maximum tolerance, is NULL andVOID
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3. respondents are ENJOINEDto REFRAINfrom using it and to STRICTLY OBSERVEtherequirements of maximum tolerance.

4. The petitions are DISMISSEDin all other respects, and the constitutionalityof BatasPambansa No. 880 is SUSTAINED.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And PetitionThe Government [And] For Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title.This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. Theconstitutional right of the peoplepeaceably to assemble andpetition the government for redress of grievances is essential and vital to the strength and stability of theState. To this end, the State shall ensure the free exercise of such right without prejudice to the rights ofothers to life, liberty and equal protection of the law.

Sec. 3. Definition of terms.For purposes of this Act:

(a) "Public assembly"means any rally, demonstration, march, parade, procession or anyother form of mass or concerted action held in a public place for the purpose of presenting alawful cause; or expressing an opinion to the general public on any particular issue; orprotesting or influencing any state of affairs whether political, economic or social; orpetitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages forreligious purposes shall be governed by local ordinances; Provided, however, That the

declaration of policy as provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strikeareas by workers and employees resulting from a labor dispute as defined by the LaborCode, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place"shall include any highway, boulevard, avenue, road, street, bridge or otherthoroughfare, park, plaza, square, and/or any open space of public ownership where thepeople are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police andother peace keeping authorities shall observe during a public assembly or in the dispersal ofthe same.

(d) "Modification of a permit"shall include the change of the place and time of the publicassembly, rerouting of the parade or street march, the volume of loud-speakers or soundsystem and similar changes.

Sec. 4. Permit when required and when not required.A written permit shall be required for any person

or persons to organize and hold a public assembly in a public place. However, no permit shall berequired if the public assembly shall be done or made in a freedom park duly established by law orordinance or in private property, in which case only the consent of the owner or the one entitled to itslegal possession is required, or in the campus of a government-owned and operated educationalinstitution which shall be subject to the rules and regulations of said educational institution. Politicalmeetings or rallies held during any election campaign period as provided for by law are not covered bythis Act.

Sec. 5.Application requirements. All applications for a permit shall comply with the followingguidelines:

(a) The applications shall be in writi

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