Bill of Rights - Freedom of Speech and Expression

Question 1

Article III Section 4

Answer 1

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peacably to assemble and peititon the government for redress of grievances.

Question 2

What is protected under the freedom of expression?

Answer 2

All manner of expressive conduct – symbolic speech, the right to be silent, etc. (framers of the CONST, as discussed by GDV)

Question 3

Important concepts in freedom of speech and expression

Answer 3

Important concepts:
1. Prior restraint and subsequent punishment
2. Content based and content neutral
3. Facial challenges and overbreadth doctrine
4. Tests to determine the validity of governmental regulation
5. State regulation of different types of mass media
6. Commercial Speech

Question 4

Is CONST. Art. III Sec. 4 limited to statutes?

Answer 4

No, the SC has applied Art. III Sec. 4 of the Constitution to governmental acts (not limited to statutes although the law expressly states “no law shall be passed”).

1. In Primicias v. Fugoso , respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner Primicias. Section 1119 requires a Mayor’s permit for the use of streets and public places for purposes such as athletic games, sports, or celebration of national holidays. What was questions was not a law but the Mayor’s refuals to issue a permit for the holding of petitioner’s public meeting. Nevertheless, this court recognized the constitutional right to freedom of speech, to peaceful assembly and to petition for redress of grievances, albeit not absolute, and the petition for mandamus to compel respondent Mayor to issue the permit was granted.
2. In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit surveys. The right to freedom of expression was similarly upheld in this case and, consequently,the assailed resolution was nullified and set aside.
3. Chavez v. Gonzales – what was involved where two governmental acts: pronouncements of Secretary of Justice Gonzales and the memorandum of the NTC of warning those with license to operate from playing the Garci tapes. SC ruled that pronouncement of SOJ were made in official capacity and would therefore be considered a govenrmental act, subject to the application of the test to ensure that it did not infringe upon the rights protected in Sec. 4 Art. III.

Question 5

What is the scope of the protection?

Answer 5

Diocese of Bacolod case, SC ruled that it extends to nearly all forms of communication. The protection under CONST. Art. III Sec. 4 assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news or informational ends, including entertaining, instructive or informative speech or publications.

1. Speech is not limited to vocal communication – conduct is treated as a form of speech sometimes referred to as “symbolic speech” such that “when speech and nonspeech elements are combined in the smae course of conduct, the communicative element of the conduct may be sufficient to bring into play the right to freedom of expression;
2. The right to freedom of expression applies to the entire continuum of speech from (a) utterancesmade to (b) conduct enacted, and even to (c) inaction itself as a symbolic manner of communication;
3. Protects speech, print and assembly regarding secular as well as political causes and is not confined to any particular filed of human interest; the Constitution’s basic guarantee of freedom to advocate ideas is not confined to the expressoin of ideas that are conventional or shared by the majority.
4. Freedom of speech includes the right to be silent. e.g. the salute is a symbolic manner of communication–as a valid form of expression, it cannot be complled any more than it can be prohibited in the face of valid reliigious objections.

Question 6

What are the two general forms of restraint upon Section 4 freedoms?

Answer 6

1. Prior restraint
2. Subsequent punishment

Question 7

What is prior restraint on Art. III Sec. 4 freedoms?

Answer 7

Prior restraint refers to official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.

E.g. Censorship; licensing or permits (for publication); business closure

NOTE: any act done, such as speech uttered, for and on behalf of government in any official capacity is covered by prior restraint.

Question 8

What is subsequent punishment?

Answer 8

Subsequent punishment - where punishment is imposed following the exercise of expression, speech, or the conduct that is protected in Art. III Sec. 4.

E.g.: libel suit, prosecution for sedition, contempt proceedings

Question 9

Rule on validity of prior restratints and presumption of invalidity

Answer 9

Prior restraint
1. Not all prior restraint is invalid
2. But all prior restratints are presumed invalid (“any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows”) –> in other words, in litigation involving section 4 rights, the burden falls on government to justify the governmental restraint or restriction

Question 10

Compare the nature of content-neutral regulation vs. content-based regulation

Answer 10

1. Content-neutral regulation - merely concerned with the incidents of speech, ore one that merely controls the time, place or manner, and under well-defined standards
2. Content-based regulation - restriction based on the subject matter of the utterance or speech.

Question 11

Compare the tests for validity of content-neutral and content-based regulations

Answer 11

1. Content-neutral is subject to the intermediate approach because it is not designed to suppress any particular message. Hence, a government regulation is sufficiently justified if (1) it is within the constitutional power of Government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the supression of free expression and (4) if the incident restriction on the alleged freedom is no greater than is essential to the furtherance of that interest.

The restriction should be narrowly-tailored to promote an important or significant government interest.

2. Content-based regulation is given the strictest scrutiny in light of its inherent and invasive impact. It must overcome the clear and present danger rule and government has the burden of overcoming the presumption of unconstitutionality.

Question 12

Explain the clear and present danger test

Answer 12

The clear and present danger test complies with the strict scrutiny rule that is applied to content-based regulations. Under this tests, it asks:

whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Hence, Government must show the type of harm the speech sought to be restrained would bring about – gravity and imminence (cannot be justified by hypothetical fears. Requires compelling reason and restrictions that are neither overbroad nor vague.

Question 13

What is the analytical framework that has been developed for article iii sec. 4 cases?

Answer 13

Analytical framework (based on Chavez v. Gonzales – CJ Puno discussed all the concepts of prior restraint, subsequent punishment, content based, content neutral). If you are confronted with a content based restriction, particularly prior restraint.

1. The test
2. The presumption
3. The burden of proof
4. The party to discharge the burden
5. The quantum of evidence necessary

Question 14

State the clear and present danger test

Answer 14

The question in the clear and present danger test is whether the words are used in such circumstnaces and are of such a nature as to create a clear and present danger that they will bring about the substantive evils.

NOTE: The clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government hasa right to prevent. This rule requires that the evil conseqeuences sought to be prevented must be substantive, extremely serious and the degree of imminence is extremely high.

Question 15

State the Dangerous Tendency Test

Answer 15

The dangerous tendency doctrine permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated.

Question 16

Distinguish clear and present danger test from dangerous tendency

Answer 16

The essential difference between the two doctrines relates to the degree of proximity of the apprehended danger which justified the restriction upon speech.

The dangerous tendency doctrine permitted the application of restrictions once a rational connection between the speech restrained and the danger apprehended– the “tendency” of one to create the other – was shown.

The clear and present danger rule, in contrast, requires the Government to defer application of restrictions until the apprehended danger was much more visible until its realization was imminent and nigh at hand. The latter rule was thus considerably more permissive of speech than the former, in contexts for the testing of which they were originally designed.

Question 17

State the balancing-of-interests test

Answer 17

The balancing-of-interests test is used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.

Briefly stated, the “balancing” test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation. In the actual application of the “balancing-of-interests” test, the crucial question is: how much deference should be given the legislative judgment? It does not seem to me enough to say that this Court should not concern itself with the wisdom of a particular legislative measure but with the question of constitutional power.

Question 18

How do we apply the balancing-of-interests test?

Answer 18

A wide range of factors are necessarily relevant in applying the balancing-of-interests test:
1. The social values and importance of the specific aspect of the particular freedom restricted by the legislation;
2. The specific thrust of the restriction ie. whether the restriction is direct or indirect, wheter or not the persons affected are few;
3. the value and importance of the public interest sought to be secured by the legislation – the reference here is to the nature and gravity of the evil which Congress seeks to prevent;
4. whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and
5. whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.

Question 19

Are there forms of speech that are unprotected?

Answer 19

Yes. This does not mean that the Constitution is blind to them. This simply means that these forms of speech are amenable to regulation in a way that is very different from protected speech.

These are those generally understood as those “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” However, these may not be used as vehicles for content descrimination (e.g. libel may be proscribed but there can ben o further content discrimination by proscribing only libel critical of government).

Examples:
1. Obscenity
2. Defamation (see Revised Penal Code provisions of libel and slander)
3. Fighting words

Question 20

What is obscenity?

Answer 20

There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit:

1. whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest;
2. wheter the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

BUT i twould be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determening what is patently offensive. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive and hard core sexual conduct. Examples included (a) patently offensive representation or drescriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion.

e.g. Art. 201 RPC; thus search and seizure warrant needed for seizure of allegedly obscene materials because the Court determines whether it is obscene since it is a judicial question

Question 21

When is speech considered defamatory?

Answer 21

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.

Question 22

Elements of defamatory speech

Answer 22

1. That the allegation ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead.
2. Publication - there is publication if the material is communicated to a third person. It is not required that the person defamed has read or heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for a mans reputaiton is the estimate in which others hold him, not the good opinion which he has of himself.
3. Identifiability - it must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement.
4. Malice or ill will - every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the ff. cases (qualified privilege): (a) a private communication made by any person to another in the performance of any legal, moral or security duty; and (b) a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

Question 23

Differentiate political and commercial speech

Answer 23

Political speech refers to speech “both intended and received as a contribution to public deliberation about some issue, fostering informed and civic minded deliberation.”

Commercial speech has been defined as speech that does no more than propose a commercial transaction.

Commercial speech is closer to becoming a subject to regulation as opposed to political speech. Hence, not all speech are treated the same. (see unprotected speech also)

Question 24

Speeches with limited protection

Answer 24

1. Unprotected speech - libel, slander, obscenity, etc.
2. Commercial speech - as opposed to political speech
3. Radio and television speech - e.g. broadcasting needs license
4. Motion picture
5. Speech and government - i.e. speech by those who are part of the public sector

Question 25

Why does broadcasting, radio, and television have lesser protection?

Answer 25

1. Broadcasting has to be licensed becaues airwave frequencies have to be allocated among qualified users.
2. Pervasive presence in lives of all citizens; the materials not only confront hte citizens in public but also in the privacy of their homes
3. Selectivity cannot be implemented with regard to material available to children

But note for cases of media and press

Question 26

What is the right to freedom of assembly?

Answer 26

It is one of the cognate rights under Article III Sec. 4.

Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent.

Question 27

What is the enacting law of Art. III Sec. 4 on the right to freedom of assembly?

Answer 27

The implementing law remains to be Batas Pambansa Blg. 880 or the Public Assembly Act of 1985. It is very clear that BP No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmena v. COMELEC where the SC refered to it as a content-neutral regulation of the time, place, and manner of holding public assemblies.

Question 28

What is the statutory definition of a public assembly?

Answer 28

Public assembly statutorily defined as a rally, demonstration, march, parade, procession or any other form of mass or concerted action:
1. held in a public place for the purpose of presenting a lawful case;
2. expressing an opinion to the general public on any particular issue;
3. protesting or influencing any state of affairs whether political, economic, or social;
4. petitioning the government for redress of grievances

Question 29

What are public places under BP Blg. 880?

Answer 29

A public place includes any highway, boulevard, avenue, road, street, brige or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.

Question 30

What is expected of law enforcers in a public assembly?

Answer 30

Maximum tolerance.

Maximum tolerance means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

Question 31

Is a permit required for the conduct of assembly in a public place?

Answer 31

Yes, a permit is required for the conduct of assembly in a public place EXCEPT in a freedom park duly established by law or ordinance.

Question 32

What are the requirements for the conduct of an assembly in other specific places (not public place)?

Answer 32

Under BP Blg. 880, Assembly in specific places require
1. Private property - requires consent;
2. Campus of a government-owned and operated educational institution - subject to the rules and regulations of the institution
3. Political meetings or rallies held during any elections campaign - subject to law and regulations

BP 880 also applies to assemblies in specific places

Question 33

Under BP 880, what is the basis of the LGU for the refusal of a permit?

Answer 33

The LGU may refuse ONLY when there is a CLEAR AND CONVINCING EVIDENCE that the public assembly will create a CLEAR AND PRESENT DANGER to public order, public safety, public convenience, pupblic morals or public health. (BP Blg 880)

Question 34

The Samahan Ng Mga Mahihirap (SM) filed with the Office of the City Mayor of Manila an application for a permit to hold.a rally on Mendiola Street on September 5, 2006 from 10:00AM to 3:00 PM to protest the political killings of journalists. However, the City Mayor denied their application on the ground that a rally at the time and place applied for will block the traffic in the San Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio, which has been designated a Freedom Park, as venue for the rally.

Does the SM have a remedy to contest the denial of its application for a permit?

Answer 34

Yes, the Samahan ng Mga Mahihirap may contest the denial of its application for a permit by filing an action in an appropriate court of law (BP 880 sec. 6e). Nevertheless, the right of the people peaceably to assemble for redress of grievances is subject to time, place and manner regulations. These constraints are content-neutral and ential only the minimum test of rationality. The City Mayor has denied the permit on the ground that it will block traffic in the San Miguel and Quiapo districts. This is a proper “time, place and manner” regulation expressly authorized by BP 880.

NOTE: BP Blg. 880 Sec. 6(e). If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

Question 35

The Samahan Ng Mga Mahihirap (SM) filed with the Office of the City Mayor of Manila an application for a permit to hold.a rally on Mendiola Street on September 5, 2006 from 10:00AM to 3:00 PM to protest the political killings of journalists. However, the City Mayor denied their application on the ground that a rally at the time and place applied for will block the traffic in the San Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio, which has been designated a Freedom Park, as venue for the rally.

Does the availability of a Freedom Park justify the denial of SM’s application for a permit?

Answer 35

No, the availability of a Freedom Park does not by itself justify the denial of the application for a permit. A rally may be held in another public place, such as, in a campus of government-owned or operated educational institution or even in a private property. An application for a permit to hold rally may be denied only if there is a clear and present danger of a substantive evil whch the State has the right to prevent. (BP Blg. 880 Sec. 4)

NOTE: Section 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 be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.

Question 36

The Samahan Ng Mga Mahihirap (SM) filed with the Office of the City Mayor of Manila an application for a permit to hold.a rally on Mendiola Street on September 5, 2006 from 10:00AM to 3:00 PM to protest the political killings of journalists. However, the City Mayor denied their application on the ground that a rally at the time and place applied for will block the traffic in the San Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio, which has been designated a Freedom Park, as venue for the rally.

Is the requirement to apply for a permit to hold a rally a prior restraint on freedom of speech and assembly?

Answer 36

The requirement to apply for a permit to hold a rally is not a prior restraint on freedom of speech and assembly, because the requirement merely regulates the exercise of the right as to the time, place and manner of the rally to the extent needed to avoid a clear and present danger of a substantive evil which the State has the right to prevent. The requirement is not content-based, since the content of the speech is not relevant to the regulation (Bayan v. Ermita 488 SCRA 226 (2006)).

Question 37

The Samahan Ng Mga Mahihirap (SM) filed with the Office of the City Mayor of Manila an application for a permit to hold.a rally on Mendiola Street on September 5, 2006 from 10:00AM to 3:00 PM to protest the political killings of journalists. However, the City Mayor denied their application on the ground that a rally at the time and place applied for will block the traffic in the San Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio, which has been designated a Freedom Park, as venue for the rally.

Assuming that despite the denial of SM’s application for a permit, its members hold a rally, prompting the police to arrest them. Are the arrests without Judicial warrants lawful?

Answer 37

Only the leader or organizer can be arrested without a warrant during the rally for holding a rally without a permit, but no person can be arrested for merely participating in or attending the rally if it was peaceful (Sec 13a, BP 880). The rally should just be peacefully disperes (Sec. 12 BP 880)

NOTE:

Section 13. Prohibited acts - The following shall constitute violations of this Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly;

Section 12. Dispersal of public assembly without permit - When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed.

Question 38

The KKK Television Network (KKK-TV) aired the documentary, “Case Law: How the Supreme Court Decides,” without obtaining the necessary permit required by P.D. 1986. Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the airing of KKK-TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review over all television programs, except “newsreels” and programs “by the Government”, and the subject documentary does not fall under either of these two classes. The suspension order was ostensibly based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an order.

KKK-TV filed a certiorari petition in court, raising the following issues:

The act of MTRCB constitutes “prior restraint” and violates the constitutionally guaranteed freedom of expression;

[xxx]

Resolve the foregoing issues, with reasons.

Answer 38

Answer: The contention of KKK-TV is not tenable. The prior restraint is a valid exercise of police power. Television is a medium which reaches even the eyes and ears of children.

Alternative Answer: The memo circulsar is unconstitutional. The act of the MTRCB constitutes prior restraint and violates freedom of expression. Any system of prior restraint has against it a heavy presumption against its validity. Prior restraint is an abridgment of the freedom of expression. There is no showing that the airing of the programs would constitute a clear and present danger.

Question 39

May the COMELEC prohibit the posting of decals and stickers on “mobile” places, public or private, such as on a private vehicle, and limit their location only to the authorized posting areas that the COMELEC itself fixes?

Answer 39

The prohibition is unconsitutional as it curtails the freedom of expression of individuals who wish to express their preference for a candidate by posting decals and stickerso n their cars and to convince others to agree with them. It is also overbroad because it encompasses private property and constitutes deprivation of property without due process of law.

(see jurisprudence, check PubOff syllabus and also One Utak case)

Question 40

Congress passes a law prohibiting television stations from airing any commercial advertisement which promotes tobacco or in any way glamorizes the consumption of tobacco products. This legislation was passed in response to findings by the Department of Health about the alarming rise in lung diseases in the country. The World Health Organization has alo reported that U.S. tobacco companies have shifted marketing efforts to the Third World due to dwindling sales in the health-conscious American market. Cowboy Levy’s, a jeans company, recently released an advertisement featuring model Richard Burgos wearing Levy’s jackets and jeans and holding a pack of cigarettes. The Asian Broadcasting Network (ABN), a privately owned television station, refuses to air the advertisement in compliance with the law.

a. Assume that such refusal abridges the freedom of speech. Does the constitutional prohibition against the abridgment of the freedom of speech apply to acts done by ABN, a private corporation? Explain.

b. May Cowboy Levy’s, a private corporation, invoke the free speech guarantee in its favor? Explain.

Answer 40

a. No, the constitutional prohibition against freedom of speech does not apply to acts done by ABN. The constitutional guarantee of freedom of speech is a guarantee only against abridgement by the government; it does not therefore apply against acts done by ABN which is a private corporation.

b. Cowboy Levy’s may invoke the constitutional guarantee of freedom of speech in its favor. Freedom of speech may be invoked by private corporations and this right extends to commercial advertisements.