IV

IV. Freedom of Expression A.

Protected Speech

Prior Restraint #71 Near vs Minnesota Facts: The Saturday Press (the Press) published attacks on local officials. The Press claimed that the chief of police had ―illicit relations with gangsters.‖ Minnesota officials obtained an injunction in order to abate the publishing of the Press newspaper under a state law that allowed this course of action. The state law authorized abatement, as a public nuisance, of a ―malicious, scandalous and defamatory newspaper, or other periodical. A state court order abated the Press and enjoined the Defendants, publishers of the Press (Defendants), from publishing or circulating such ―defamatory and scandalous‖ periodicals. Issue: Whether a statute authorizing such proceedings is consistent with the conception of the liberty of the press as historically conceived and guaranteed? Holding: No. Judgment of the state court reversed. The fact that the liberty of press may be abused by miscreant purveyors of scandal does not effect the requirement that the press has immunity from previous restraints when it deals with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with the constitutional privilege. Therefore, a statute authorizing such proceedings is not consistent with the conception of the liberty of the press as historically conceived and guaranteed and is thus, unconstitutional. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. This statute, if upheld, could lead to a complete system of censorship. Thus, the statute is a substantial infringement on the liberty of the press and in violation of the Fourteenth Amendment of the Constitution. #72 New York Times Co. v. United States [The Pentagon Papers Case] Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held that the Government failed to meet the requisite burden of proof needed to justify a prior restraint of expression when attempting to enjoin the New York Times and Washington Post from publishing contents of a classified study.

Synopsis of Rule of Law. Any system of prior restraints on expression comes to the Supreme Court bearing a heavy presumption against its invalidity. The Government ―thus creates a heavy burden of showing justification for the enforcement of such a restraint.‖ Facts. The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government‘s decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint. Issue. Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study? Held. No. Judgments of the lower courts affirmed. The order of the Court of Appeals for the Second Circuit is reversed and remanded with directions to enter a judgment affirming the District Court. The stays entered June 25, 1971, by the Court are vacated. The mandates shall issue forthwith. Dissent. The scope of the judicial function in passing upon activities of the Executive Branch in the field of foreign affairs is very narrowly restricted. This view is dictated by the doctrine of Separation of Powers. The doctrine prohibiting prior restraints does not prevent the courts from maintaining status quo long enough to act responsibly. The First Amendment is only part of the Constitution. The cases should be remanded to be developed expeditiously. Concurrence. To find that the President has ―inherent power‖ to halt the publication of news by resort to the courts would wipe out the First Amendment of the United States Constitution [Constitution]. The First Amendment of the Constitution leaves no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material that the Times and Post seek to publish. The First Amendment of the Constitution tolerates no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Thus, only governmental allegation and proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support the issuance of an interim restraining order. Unless and until the Government has clearly made its case, the First Amendment of the Constitution commands that no injunction be issued. The responsibility must be where the power is. The Executive must have the large duty to determine and preserve the

degree of internal security necessary to exercise its power effectively. The Executive is correct with respect to some of the documents here, but disclosure of any of them will not result in irreparable danger to the public. The United States has not met the very heavy burden, which it must meet to warrant an injunction against publication in these cases. The ultimate issue in this case is whether this Court or the Congress has the power to make this law. It is plain that Congress has refused to grant the authority the Government seeks from this Court. Discussion. This very divided opinion shows how heavy the Government‘s burden is to justify a prior restraint of expression. #73 Freedman v. Maryland Facts: A Maryland motion picture censorship statute required that all films be submitted to a board of censors before being exhibited. The board could ban films that were obscene, debased or corrupted morals, or tended to incite crime. There was no time limit on the decision-making process. Appellant Freedman challenged the constitutionality of the statute, due to the procedures to obtain approval. Appellant exhibited the film "Revenge at Daybreak" at a movie theater he owned without first submitting the picture to the State Board of Censors as required by the statute. The State conceded that the picture did not violate the statutory standards and would have received a license if it had been properly submitted. Appellant was convicted of violating the statute despite his contention that the statute violated his First Amendment freedom of expression. The Court of Appeals of Maryland affirmed. Appellant appealed to the US Supreme Court. Issue: Did the Maryland censorship statute requiring films to be submitted to a censorship board violate First Amendment rights, because there is no time limit on the decision-making process? Ruling: "In the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute and whether or not he applied for a license… We think that appellant's assertion of a similar danger in the Maryland apparatus of censorship-one always fraught with danger and viewed with suspicion-gives him standing to make that challenge. In substance his

argument is that, because the apparatus operates in a statutory context in which judicial review may be too little and too late, the Maryland statute lacks sufficient safeguards for confining the censor's action to judicially determined constitutional limits, and therefore contains the same vice as a statute delegating excessive administrative discretion. We hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system... The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. To this end, the exhibitor must be assured, by statute or authoritative judicial construction that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is unprotected, may have a discouraging effect on the exhibitor. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license. It is readily apparent that the Maryland procedural scheme does not satisfy these criteria... Under the statute, appellant could have been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had ever ruled on the obscenity of the film... [I]t is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination. We hold, therefore, that appellant's conviction must be reversed. The Maryland scheme fails to provide adequate safeguards against undue inhibition of protected expression, and this renders the Section 2 requirement of prior submission of films to the Board an invalid previous restraint. We think that the nature of the motion picture industry may suggest different time limits for a judicial determination. It is common knowledge that films are scheduled well before actual exhibition, and the requirement of advance submission in Section 2 recognizes this. One possible scheme would be to allow the exhibitor or distributor to submit his film early enough to ensure an orderly final disposition of the case before the scheduled exhibition date-far enough in advance so that the exhibitor could safely advertise the opening on a normal basis... We do not mean to lay down rigid time limits or procedures, but to suggest considerations in drafting legislation to accord with local exhibition practices, and in doing so to avoid the potentially chilling effect of the Maryland statute on protected expression. Reversed." Subsequent Punishment

#74 People vs Perez Facts: On April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said accused, Isaac Perez, while holding a discussion with several persons on political matters, did criminally, unlawfully and wilfully and with knowledge that Honorable Leonard Wood was the GovernorGeneral of the Philippine Islands and in the discharge of his functions as such authority, insult by word, without his presence, said Governor-General, uttering in a loud voice and in the presence of many persons, and in a public place, the following phrases: "Asin an mangña filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the Philippines. Charged in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code having to do with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has appealed the case to this court. The question presented for decision is, What crime, if any, did the accused commit?

pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto, supra.) In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate others to cabal or meet together for unlawful purposes. He has made a statement and done an act which suggested and incited rebellious conspiracies. He has made a statement and done an act which tended to stir up the people against the lawful authorities. He has made a statement and done an act which tended to disturb the peace of the community and the safety or order of the Government. All of these various tendencies can be ascribed to the action of Perez and may be characterized as penalized by section 8 of Act No. 292 as amended. The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section 8 of Act No. 292 as amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance with the sentence of the lower court, the defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. #75 Dennis v US

The accused testified that the discussion was held in a peaceful manner, and that what he wished to say was that the Governor-General should be removed and substituted by another. Issue: Whether or not Perez should be punished for expressing his ideas even if they only tended to create the evil sought to be prevented?

Brief Fact Summary. The Petitioners, Dennis and others (Petitioners) were convicted for (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. The constitutionality of the statute under which the Petitioners were convicted was challenged.

Ruling: It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we can muster, that until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to ministers of the Crown or to writings coming under the Libel Law, exist and must be enforced. To which proposition, can properly be appended a corollary, namely: Seditious words, speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and the Libel Law are modified.

Synopsis of Rule of Law. For an impediment on free expression to be permissible, the gravity of the evil, discounted by its improbability of coming about, must sufficiently outweigh the invasion of free speech necessary to avoid the danger.

It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of speech and the right of the people peaceably to assemble and petition the Government for redress of grievances. Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (III Wharton's Criminal Law,

Smith Act (the Act) made it a criminal offense for a person to knowingly or willfully advocate the overthrowing of any government in the United States by force or to attempt to commit or conspire to commit the crime the same. The Petitioners were brought up on charges under the Act for allegedly (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. It was clear from the record that the leaders of the Communist Party intended to initiate a revolution when the opportunity came. The Trial Court found the Petitioners guilty. The Court of Appeals affirmed. The constitutionality of the statute under which the Petitioners were convicted was challenged.

Facts.

Issue. Was the statute invalid by its own terms because it prohibited academic discussions on topics such as that of the merits of Marxism-Leninism?

Revolution were upheld because their speech was not protected by the United States Constitution (Constitution) based on the ―clear and present danger‖ test.

Held.

Synopsis of Rule of Law. Men must be held to have intended and to be accountable for the effects, which their acts are likely to produce

The Court of Appeals is affirmed. Chief Justice Fred Vinson (J. Vinson) We must apply the ―clear and present danger‖ test. Accordingly, we note that the overthrow of the Government by force is certainly a substantial enough interest for the Government to limit speech. Obviously, ―clear and present danger‖ does not mean the government may not act until the Putsch has been plotted and on is the verge of being executed. On the facts, the court was convinced that the requisite danger to act existed here: (1) the formation by the Petitioners of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders (the Petitioners) felt it was time for action; (2) the inflammable nature of world conditions; (3) similar uprisings in other countries; and (4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned. Thus, the convictions of the Petitioners were justified. Dissent. Justice Hugo Black (Justice Black) While it is true that unfettered communication of ideas does entail danger, the benefits in the eyes of the Founders of this Nation, derived from free expression were worth the risk. Justice William Douglas (Justice Douglas) If this were a case where the speaker was teaching techniques of sabotage, the assassination of the President, or the planting of bombs, I would concur in the judgment. But, the reality is that no such evidence was introduced at trial. Concurrence. Justice Robert Jackson (J. Jackson) An individual cannot claim the constitutional protections of the First Amendment in advocating or teaching the overthrow of government by violence. I think such conduct can be made a crime, even without requiring a showing of an extremely high probability of success of a scheme. Justice Felix Frankfurter (J. Frankfurter) The results we have reached are the product of a careful weighing of the following factors: (1) that social value of the speech being prohibited; (2) the chilling effect on legitimate speech that the punishment of any form of speech may have; and (3) the interest in the government in security. #76 Abrams v. United States Brief Fact Summary. The defendants‘ convictions for distributing leaflets advocating strikes during the Russian

Facts. The Defendants, Abrams and others (Defendants) were Russian immigrants. The Defendant were self-proclaimed revolutionists and anarchists who wrote and distributed thousands of circulars advocating a general strike and appealing to workers in ammunitions factories to stop the production of weapons to be used against Russian revolutionaries. They were convicted under 1918 amendments to the Espionage Act that prohibited the curtailment of production of materials necessary to the prosecution of war against Germany with intent to hinder its prosecution.

that it has already sold its radio broadcasting station in favor of Manuel B. Pastranaas well as its rights and interest in the radio station DYRE in Cebu including its right to operate and its equipment, and that they are not anymore interested in pursuing the case any further. The case has become moot and academic. But, for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions, the Court still issued the guidelines regarding the matter. ISSUE: Whether or not there was denial of due process to the petitioner. HELD:

#77 EASTERN BROADCASTING CORPORATION (DYRE) vs.DANS

The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. The closure of the petitioner's radio station on grounds of national security without elaboration of the grounds and without hearing deserves to be condemned in no uncertain terms for it is manifest that due process was not observed. If there is an Idea which should be impressed in the minds of those who wield power it is that power must be used in a reasonable manner. Arbitrariness must be eschewed Broadcast media while subject to government licensing and regulation are equally protected by the preferred freedoms of speech and of the press and by the rudimentary requirements of due process against arbitrary deprivation of life, liberty and property. The summary closure in October, 1980 of petitioner's radio station ("definitely attended by complete absence of any hearing before or after the closure itself ") violated its constitutional rights and must therefore be declared null and void.

FACTS:

―Speech Plus‖: Symbolic Speech

This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had been summarily closed on grounds of national security. The petitioner contended that it was denied due process when it was closed on the mere allegation that the radio station was used to incite people to sedition. It alleged that no hearing was held and not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not informed beforehand why administrative action which closed the radio station was taken against it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the closure action. The petitioner alleged

#78 United States v. O’Brien

Issue. Whether the Defendants‘ speech was protected by the First Amendment of the Constitution? Held. No. Men must be held to have intended and to be accountable for the effects which their acts are likely to produce. The plain purpose of Defendants‘ propaganda was to excite, at the supreme crisis of war, disaffection, sedition, riots and as they hoped, revolution in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe. Therefore, their speech is not protected by the First Amendment of the Constitution. Dissent. In this case, sentences of twenty years have been imposed for the publishing of two leaflets that the Defendants had as much right to publish as the Government had to publish the Constitution. Discussion. Clear and present danger supposedly assures special attention to the time dimension. Speech may not be curtailed until there is an immediate risk of an evil. Speech with a remote tendency to cause danger may not be curtailed.

Brief Fact Summary. The Defendant, O‘Brien (Defendant), was convicted for symbolically burning his draft card under a federal statute forbidding the altering of a draft card. His conviction was upheld after the Supreme Court of the United States (Supreme Court) found the law constitutional. Synopsis of Rule of Law. First, a government regulation is sufficiently justified if it is within the constitutional power of the government. Second, if it furthers a substantial or important governmental interest. Third, if the governmental interest is unrelated to the suppression of free expression.

Fourth, if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest. Facts. The Defendant was convicted under Section:462(b)(3) of the Universal Military Training and Service Act (UMTSA) of 1948, amended in 1965 to include the applicable provision that made it an offense to ―alter, knowingly destroy, knowingly mutilate‖ a Selective Service registration certification. Defendant knowingly burned his draft card on the front steps of the local courthouse. The Court of Appeals held the 1965 amendment unconstitutional as a law abridging the freedom of speech. Issue. Whether the 1965 Amendment is unconstitutional as applied to Defendant because his act of burning the draft card was protected ―symbolic speech‖ within the First Amendment? Whether the draft cards are merely pieces of paper designed only to notify registrants of their registration or classification, to be retained or tossed into the waste basket according to the convenience of the registrant? Whether the 1965 Amendment is unconstitutional as enacted because it was intended to ―suppress freedom of speech?‖ Held. No. Judgment of the Court of Appeals reversed. It cannot be accepted that there is an endless and limitless variety of conduct that constitutes ―speech‖ whenever the person engaging in the conduct intends to express an idea. However, even if the alleged communicative element of Defendant‘s conduct is sufficient to bring into play the First Amendment of the United States Constitution (Constitution), it does not necessarily follow that the destruction of a draft card is constitutionally protected activity. First, a government regulation is sufficiently justified if it is within the constitutional power of the government. Second, if it furthers a substantial or important governmental interest. Third, if the governmental interest is unrelated to the suppression of free expression. Fourth, if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest. The 1965 Amendment meets all these requirements. Therefore, the 1965 Amendment is constitutional as applied to Defendant. No. Judgment of the Court of Appeals reversed. Although the initial purpose of the draft card is to notify, it serves many other purposes as well. These purposes would be defeated if the card were to be mutilated or destroyed. No. Judgment of the Court of Appeals reversed. The purpose of Congress is not a basis for declaring this legislation unconstitutional. Therefore, the 1965 Amendment is constitutional as enacted. Discussion. This case creates a symbolic speech test that was used here to uphold the 1965 Amendment to the UMTSA.

#79 Tinker v. Des Moines Independent Community School District Brief Fact Summary. Tinker (Petitioner) was suspended from school for showing his support of the anti-war movement. Synopsis of Rule of Law. Student speech may be regulated when such speech would materially and substantially interfere with the discipline and operation of a school. Facts. Petitioner was a high school student who joined his parents in protesting the Vietnam War. The form of protest was to wear a black armband for a period of two weeks during the holiday season. When Petitioner arrived at school he was told to remove the armband or be suspended. He took the suspension and did not return to school until after the protest period ended, New Year‘s Eve 1965. Issue. Is symbolic speech by public school students protected under the First Amendment? Held. Yes. Students are persons worthy of constitutional protections both while in school and out of school. Dissent. The students are not wise enough to support or reject a cause. It is best to leave the order of education to the administrator‘s judgment. Discussion. The wearing of the armband was singled out of all other symbolic speech engaged in by the student body. Clearly, this was designed to erase all opposition to the war speech in the schools and was not related to any legitimate purpose. There was no evidence that the wearing of the armbands caused any disruption of any class or school function. Assembly and Petition #80 Primicias v Fugoso

Doctrine: Clear and Present Danger Test, Freedom of Assembly and Expression FACTS: This case is an action of mandamus instituted by petitioner Cipriano Primicias, manager of the Coalesced Minority Parties, against respondent Manila City Mayor, Valeriano Fugoso, to compel the latter to issue a permit for the holding of a public meeting at the Plaza Miranda on Nov 16, 1947. The petitioner requested for a permit to hold a ―peaceful public meeting‖. However, the respondent refused to issue such permit because he found ―that there is a reasonable ground to believe, basing upon previous utterances and upon the fact that passions, specially on the part of the losing groups, remains bitter and high, that similar speeches will be delivered tending to undermine the faith and confidence of the people in their government, and in the duly peace and a disruption of public order.‖ Respondent

based his refusal to the Revised Ordinances of 1927 prohibiting as an offense against public peace, and penalizes as a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation engaged in any lawful assembly." Included herein is Sec. 1119, Free use of Public Place. ISSUE: Whether or not the Mayor has the right to refuse to issue permit hence violating freedom of assembly. HELD: The answer is negative. Supreme Court states that the freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitution. However, these rights are not absolute. They can be regulated under the state‘s police power – that they should not be injurious to the equal enjoyment of others having equal rights, nor to the rights of the community or society. The Court holds that there can be 2 interpretations of Sec. 1119: 1) the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful assembly or meeting, parade, or procession in the streets and other public places of the City of Manila; and 2) The right of the Mayor is subject to reasonable discretion to determine or specify the streets or public places to be used with the view to prevent confusion by overlapping, to secure convenient use of the streets and public places by others, and to provide adequate and proper policing to minimize the risk of disorder. The court favored the second construction since the first construction is tantamount to authorizing the Mayor to prohibit the use of the streets. Under our democratic system of government no such unlimited power may be validly granted to any officer of the government, except perhaps in cases of national emergency. It is to be noted that the permit to be issued is for the use of public places and not for the assembly itself. The Court holds that the assembly is lawful and thus cannot be struck down. Fear of serious injury cannot alone justify suppression of free speech and assembly. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one . The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. PETITION IS GRANTED. #81 Navarro v Villegas

431 Navarro vs. Villegas [GR L-31687, 26 February 1970] Resolution: 1 concur in separate opinion, 2 dissented Facts: Navarro requested for a permit to hold a meeting at Plaza Miranda in the afternoon of 26 February 1970. The Mayor of Manila, Villegas, instead offered the Sunken Gardens, as an alternative to Plaza Miranda, as the site of the demonstration. Mayor Villegas has not denied nor absolutely refused the permit sought by Navarro. Navarro filedthe petition for mandamus. The Court, after considering the pleadings and arguments of the parties, issued a Resolution without prejudice to a more extended opinion. Issue: Whether the Mayor possesses discretion to determine the public places to be used for assembly, i.e. the Sunken Garden, instead of Plaza Miranda. Held: As stated in Primicias v. Fugoso (80 Phil. 75), the Mayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. The Mayor has expressly stated his willingness to grant permits for peaceful assemblies at Plaza Miranda during Saturdays, Sundays and holidays when they would not cause unnecessarily great disruption of the normal activities of the community and has further offered Sunken Gardens as an alternative to Plaza Miranda as the site of the demonstration sought to be held in the afternoon of 26 February 1970. Experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving the Mayor's appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no means of preventing such disorders. Consequently, every time that such assemblies are announced, the community is placed in such a state of fear and tension that offices are closed early and employees dismissed, storefronts boarded up, classes suspended, and transportation disrupted, to the general detriment of the public. Civil rights and liberties can exist and be preserved only in an ordered society. Navarro has failed to show a clear specific legal duty on the part of Mayor to grant their application for permit unconditionally. #82 PBM Employees vs PBM (supra) Facts: The petitioner Philippine Blooming Mills Employees Organization (PBMEO) is a legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and petitioners. Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union. Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang on March 4,

1969, in protest against alleged abuses of the Pasig police. PBMEO thru Pagcu confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled because it has already been agreed upon in the meeting. Pagcu explained further that the demonstration has nothing to do with the Company because the union has no quarrel or dispute with Management. The Management, thru Atty. C.S. de Leon, Company personnel manager, informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the Constitution but emphasized that any demonstration for that matter should not unduly prejudice the normal operation of the Company. Workers who without previous leave of absence approved by the Company, particularly, the officers present who are the organizers of the demonstration, who shall fail to report for work the following morning shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be amounting to an illegal strike. Because the petitioners and their members numbering about 400 proceeded with the demonstration despite the pleas of the respondent Company that the first shift workers should not be required to participate in the demonstration and that the workers in the second and third shifts should be utilized for the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, filed a charge against petitioners and other employees who composed the first shift, for a violation of Republic Act No. 875(Industrial Peace Act), and of the CBA providing for 'No Strike and No Lockout.' Petitioners were held guilty in by CIR for bargaining in bad faith, hence this appeal.

peace officers of the municipality. As above intimated, the condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right to individual existence as well as that of their families. Material loss can be repaired or adequately compensated. The debasement of the human being broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. As heretofore stated, the primacy of human rights—freedom of expression, of peaceful assembly and of petition for redress of grievances —over property rights has been sustained. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition. Circulation is one of the aspects of freedom of expression. If demonstrators are reduced by one-third, then by that much the circulation of the Issue raised by the demonstration is diminished. The more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of one-third of their members will be regarded as a substantial indication of disunity in their ranks which will enervate their position and abet continued alleged police persecution.

Issue: Whether or Not the petitioners right to freedom of speech and to peaceable assemble violated. Held: Yes. A constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. This is not present in the case. It was to the interest herein private respondent firm to rally to the defense of, and take up the cudgels for, its employees, so that they can report to work free from harassment, vexation or peril and as consequence perform more efficiently the irrespective tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to intercede for its employees with the local police. In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition against alleged persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution—the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for the preservation merely of their property rights. The employees' pathetic situation was a stark reality—abused, harassment and persecuted as they believed they were by the

#83 J.B.L. Reyes vs. Bagatsing, GR No. 65366 October 25, 1983 FACTS: Retired Justice Jose B.L. Reyes, in behalf of the Anti-Bases Coalition, sought for a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 starting from Luneta to the gates of the United States embassy. The objective of the rally was to peacefully protest the removal of all foreign military bases and to present a petition containing such to a representative of the Embassy so it may be delivered to the United States Ambassador. This petition was to initially compel the Mayor of the City of Manila to make a decision on the application for a permit but it was discovered that a denial has already been sent through mail. It also included a provision that if it be held somewhere else, permit may be issued. The respondent mayor alleges that holding the rally in front of the US Embassy is a violation of the resolutions during the Vienna Convention on Diplomatic Relations adopted in 1961 and of which the Philippines is a signatory. In the doctrine of incorporation, the Philippines has to comply with such generally accepted principles of international law as part of the law of the land. The petitioner, on the other hand, contends that the denial of the permit is a violation of the constitutional right of the freedom of speech and expression.

ISSUE: WON denial of a public rally on a public park and the US Embassy is a violation of constitutional guarantee to free speech and assembly.

because of noise created. They were asked to explain why they should not be held liable for holding an assembly. Issue: Whether or not the suspension of students for one academic year was violative of the constitutional rights of freedom of assembly and free speech?

HELD: Yes. The invocation of the right to freedom of peaceable assembly carries with it the implication that the right to free speech has likewise been disregarded. It is settled law that as to public places, especially so as to parks and streets, there is freedom of access. The Supreme Court ruled to allow the rally in front of the US Embassy to protect the exercise of the rights to free speech and peaceful assembly and on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of the permit. As a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961, the Philippines, as the receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The Constitution adopts the generally accepted principles of international law as part of the law of the land. The Vienna Convention should be part of the law of the land since it is a restatement of the generally accepted principles of international law. Respondent would only be justified in denying petitioner‘s application if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of 500 feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. #84 Malabanan vs Rameto Facts: Petitioners were officers of the Supreme Student Council of Respondent University. They sought and were granted by the school authorities a permit to hold a meeting from 8am to 12am. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science (VMAS)Basketball Court. The place indicated in such permit, not in the basketball court as therein stated, but at the second floor lobby. At such gathering, they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal Science. They continued their language severely critical of the university authorities and using megaphones in the process. There was, as a result, disturbance of classes being held. Also, non academic employees within hearing distance, stopped their work

Decision: Yes, necessarily their exercise to discuss matters affecting their welfare or involving public interest is not subjected to previous restraint or subsequent punishment unless there be a showing of clear and present danger to a substantive evil that the State has a right to prevent. The peaceable character of an assembly could be lost, however, by an advocacy or disorder. If assembly is to be held in school premises, permit must be sought from its school authorities who are devoid to deny such request. In granting such permit, there may be conditions as to the time and place of an assembly to avoid disruption of classes or stoppage of work of non-academic personnel. However, in violation of terms, penalty incurred should not be disproportionate to the offense. Free Speech and Suffrage #85 Gonzalez v COMELC Facts: Two new sections were included in the Revised Election Code, under Republic Act 4880, which was approved and took effect on 17 June 1967, prohibiting the too early nomination of candidates and limiting the period of election campaign or partisan political activity. On 22 July 1967, Arsenio Gonzales and Felicisimo R. Cabigao filed an action entitled "Declaratory Relief with Preliminary Injunction," a proceeding that should have been started in the Court of First Instance, but treated by the Supreme Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Gonzales and Cabigao alleged that the enforcement of said RA 4880 would prejudice their basic rights, such as their freedom of speech, their freedom of assembly and their right to form associations or societies for purposes not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional. Cabigao was, at the time of the filing of the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on 11 November 1967; while Gonzales is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. Issue: Whether the freedom of expression may be limited. Held: The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our constitutional system. No law shall he passed abridging the freedom of speech or of the press. It embraces, at the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. There is to be

then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual selffulfillment, of attaining the truth, of securing participation by the people in social including political decision-making, and of maintaining the balance between stability and change. The trend as reflected in Philippine and American decisions is to recognize the broadest scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-open. It is not going too far to view the function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Freedom of speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. Two tests that may supply an acceptable criterion for permissible restriction. These are the "clear and present danger" rule and the "dangerous tendency" rule. The Court is of the view that no unconstitutional infringement exists insofar as the formation of organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, it should not be annulled. The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed

inimical, because of their collision with the preferred right of freedom of expression. The scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present danger of a substantive evil, the debasement of the electoral process. The majority of the Court is of the belief that the ban on the solicitation or undertaking of any campaign or propaganda, whether directly or indirectly, by an individual, the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for public office, or the publication or distribution of campaign literature or materials, suffers from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality. The necessary 2/3 vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play. Such being the case, it is the judgment of the Court that RA 4880 cannot be declared unconstitutional. #86 Pablito V. Sanidad, Petitioner, vs.The Commission On Elections, Respondent. Facts: On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERAAUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act. The Commission on Elections, by virtue of the power vested by the1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Act. In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of COMELEC Resolution No. 2167, which provides prohibition on columnists, commentators or announcers. During the plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite Issue. It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution. Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions

on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue.

#87 National Press Club v COMELEC

Issue:

Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the coming May 1992elections; and taxpayers and voters who claim that their right to be informed of election Issue and of credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinion relevant to election Issue. Further, petitioners contend that Section 11 (b)abridges the freedom of speech of candidates, and that the suppression of mediabased campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would bring about a substantial reduction in the quantity or volume of information concerning candidates and Issue in the election thereby curtailing and limiting the right of voters to information and opinion.

Whether or not Section 19 of COMELEC Resolution No. 2167 is unconstitutional? Held: The Supreme Court ruled that Section 19 of COMELEC Resolution No. 2167 is unconstitutional. It is clear from Art. IX-C of the 1987 Constitution that what was granted to the COMELEC was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence. However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the COMELEC has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of COMELEC Resolution No. 2167 has no statutory basis. Plebiscite Issue are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the Issue, including the forum. The people affected by the Issue presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. COMELEC spaces and radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times. The instant petition is GRANTED. Section 19 of COMELEC Resolution No. 2167 is declared null and void and unconstitutional.

Facts:

Issue: Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional. Held: Yes. It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period— i.e., "during the election period." In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that" the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional

repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods. Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. Section 11 (b) as designed to cover only paid political advertisements of particular candidates. The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is not unduly repressive or unreasonable. #88 ADIONG v. COMELEC FACTS: On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws. Section 15(a) of the resolution provides: Sec. 15.Lawful Election Propaganda. The following are lawful election propaganda: (a) Pamphlets, leaflets, cards, decals… Provided, That decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof. Section 21 (f) of the same resolution provides: Sec. 21(f). Prohibited forms of election propaganda. It is unlawful: (f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards. Petitioner BloUmparAdiong, a senatorial candidate in the May 11, 1992 elections assails the COMELEC‘s Resolution insofar as it prohibits the posting of decals and stickers in ―mobile‖ places like cars and other moving vehicles. According to him

such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. ISSUE: Whether or not the COMELEC may prohibit the posting of decals and stickers on ―mobile‖ places, public or private, and limit their location or publication to the authorized posting areas that it fixes. HELD: The petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the COMELEC providing that ―decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof‖ is DECLARED NULL and VOID. The COMELEC‘s prohibition on posting of decals and stickers on ―mobile‖ places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds. The prohibition unduly infringes on the citizen‘s fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. Also, the questioned prohibition premised on the statute (RA 6646) and as couched in the resolution is void for overbreadth. The restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen‘s private property, which in this case is a privately-owned vehicle (The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one‘s living room or bedroom.) In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law. (The right to property may be subject to a greater degree of regulation but when this right is joined by a ―liberty‖ interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.) Additionally, the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate.

In sum, the prohibition on posting of decals and stickers on ―mobile‖ places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution. Use of private property as a form for others‘ speech #89 PruneYard Shopping Center v. Robins Brief Fact Summary. Students wanted to distribute literature at a large shopping center, but the owners wanted to deny them access to the property. Synopsis of Rule of Law. A state law which requires owners of large shopping enters to allow members of the public to enter their property to distribute petitions does not constitute a taking of property, even though the law limits the property owner‘s right to exclude others from its property. Facts. PruneYard (Appellant) is a shopping center open to the public. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, which is not directly related to its commercial purposes. High school students (Appellees) set up a table in a corner of Appellant‘s courtyard and distributed pamphlets in support for their opposition to a United Nations resolution against Zionism. A security guard told them to leave. Appellees seek to enjoin Appellants from denying them access to the property to circulate their petitions. Appellants content that their constitutionally established rights under the Fourteenth Amendment to exclude Appellees from adverse use of their private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a state‘s laws. Issue. When a large shopping center is required to allow free expression and petition on its property, will that amount to a taking? Held. No. The determination of whether a state law unlawfully infringes a landowner‘s property in violation of the taking clause requires an examination of whether the restriction on private property forces some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole. This includes inquiring into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investmentbacked expectations.

The requirement that appellants permit the students to exercise their protected rights of free expression and to petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants‘ property rights under the taking clause. It will not unreasonably impair the value or use of their property as a shopping

center. The shopping center may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellants have failed to show that the right to exclude others is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a taking.

ground that plaintiff had not proven that defendants had acted maliciously in publishing the aforementioned articles, although portions thereof were inaccurate or false. Hence, this appeal. ISSUE: Whether or not the said article are malicious and libellous.

Concurrence.

HELD:

(Justice Thurgood Marshall) Justice Marshall did not understand why the Court suggested that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of commonlaw rights by Congress or a state government. Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way.

Yes. In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956, presented her in a worse predicament than that in which she, in fact, was. In other words, said article was not a fair and true report of the proceedings there in alluded to. What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment or remark, besides being false.

(Justice Lewis F. Powell, Jr.) The state may not compel a person to affirm a belief he does not hold. A property owner may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. The strong emotions evoked by speech in such situations may virtually compel the proprietor to respond. Discussion. The property in this case is open to the public, very large, and the physical invasion is only temporary and confined to a small area. The interest of the owners of the shopping center is small compared to the right of expression. B.

Unprotected Speech

Defamatory Speech # 90 POLICARPIO vs. MANILA TIMES FACTS: Plaintiff Lumen Policarpio seeks to recover actual damages of the two (2) articles or news items which are claimed to be per se defamatory, libelous and false, and to have exposed her to ridicule, jeopardized her integrity, good name and business and official transactions, and caused her grave embarrassment, untold and extreme moral, mental and physical anguish and incalculable material, moral, professional and business damages. The defendants are The Manila Times Publishing Co., Inc., as publisher and the reporter or author of the first article and the managing editor, the associate editor and the news editor, respectively, of said newspapers. After the denial of the motion to dismiss the complaint, the defendants filed a joint answer admitting the formal allegations of the complaint, denying the other allegations thereof, alleging special defenses and setting up financial counterclaim for all the expenses. In due course, later on, said court rendered the aforementioned decision, upon the

We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52). It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event should be presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational manner is not per se illegal. Newspaper may publish news items relative to judicial, legislative or other official proceedings, which are not of confidential nature, because the public is entitled to know the truth with respect to such proceedings, which, being official and non-confidential, are open to public consumption. But, to enjoy immunity, a publication containing derogatory information must be not only true, but, also, fair, and it must be made in good faith and without any comments or remarks. #91 Lopez vs CA Facts: In the early part of January, 1956, there appeared on the front page of The Manila Chronicle, of which petitioner Lopez was the publisher, as well as on other dailies, a news story of a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz, sending a distress signal to a passing United States Air force plane which in turn relayed the message to Manila. An American Army plane dropping on the beach of an island an emergency-sustenance kit containing, among other things, a two-way radio set. He utilized it to inform authorities in Manila that the people in the place were living in terror, due to a series of killings committed since Christmas of 1955. Losing no time, the Philippines defense establishment rushed

to the island a platoon of scout rangers. Upon arriving Major Encarnacion and his men found, instead of the alleged killers, a man named Fidel Cruz who merely wanted transportation home to Manila. In view of this finding, Major Encarnacion branded as a "hoax," the report of respondent. This Week Magazine of the Manila Chronicle, then edited by Gatbonton, devoted a pictorial article to it in its issue of January 15, 1956. Mention was made that while Fidel Cruz‗ story turned out to be false it brought attention to the government that people in that most people in the area are sick sick, only two individuals able to read and write, food and clothing being scarce. The magazine carried photographs of the person purporting to be Fidel Cruz. Unfortunately, the pictures that were published were that of private respondent Fidel G. Cruz, a businessman contractor from Santa Maria, Bulacan. It turned out that the photographs of respondent Cruz and that of Fidel Cruz, sanitary inspector, were on file in the library of the Manila Chronicle but when the news quiz format was prepared, the two photographs were in advertently switched. However a correction was published immediately. Respondent sued petitioners in the Court of First Instance of Manila for the recovery of damages alleging the defamatory character of the above publication of his picture. Defense interposed that they are beating the deadline. The court ruled in his favor. Hence the appeal.

Issue: Whether or Not petitioners abused the freedom of the press.

Held: No. The SC, quoting Quisumbing v. Lopez, found for plaintiff, but with reduced damages, since the error in this case could have been checked considering that this was a weekly magazine and not a daily. The ruling: "there is no evidence in the record to prove that the publication of the news item under consideration was prompted by personal ill will or spite, or that there was intention to do harm,' and that on the other hand there was 'an honest and high sense of duty to serve the best interests of the public, without self-seeking motive and with malice towards none. 'Every citizen of course has the right to enjoy a good name and reputation, but we do not consider that the respondents, under the circumstances of this case, had violated said right or abused the freedom of the press. The newspapers should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and editors usually have to race with their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words.―No inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise could be characterized as libel whether in the form of printed words or a defamatory

imputation resulting from the publication of respondent's picture with the offensive caption as in the case here complained of. This is merely to underscore the primacy that freedom of the press enjoys.‖ #92 New York Times Co. v. Sullivan

se has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. * Erroneous statement is inevitable in free debate and it must be protected if the freedoms of expression are to have the breathing space that the need to survive.

Brief Fact Summary. The Plaintiff, Sullivan (Plaintiff) sued the Defendant, the New York Times Co. (Defendant), for printing an advertisement about the civil rights movement in the south that defamed the Plaintiff.

* The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory 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 was false or not.

Synopsis of Rule of Law. The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory 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 was false or not.

* The Supreme Court of the United States (Supreme Court) holds that the Constitution delimits a State‘s power to award damages for libel in actions brought by public officials against critics of their official conduct. In this case, the rule requiring proof of actual malice is applicable.

Facts. The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page ad taken out in the New York Times. The advertisement was entitled, ―Heed Their Rising Voices‖ and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South. Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police. The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false. There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the ad libe lous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed. Issue. Is the Defendant liable for defamation for printing an advertisement, which criticized a public official‘s official conduct? Held. No. Reversed and remanded. * Safeguards for freedom of speech and of the press are required by the First and Fourteenth Amendments of the United States Constitution (Constitution) in a libel action brought by a public official against critics of his official conduct. * Under Alabama law, a publication is libelous per se if the words tend to injure a person in his reputation or to bring him into public contempt. The jury must find that the words were published of and concerning the plaintiff. Once libel per

petitioner's lawsuit against certain officials alleging that the magazines he distributed were not obscene and seeking injunctive relief from police interference with his business. These latter stories did not mention petitioner Rosenbloom‘s name, but used the terms "smut literature racket" and "girliebook peddlers." Following petitioner's acquittal of criminal obscenity charges, he filed this action seeking damages under Pennsylvania's libel law. Issue: Whether the New York Times' knowing-or-reckless-falsity standard applies in a state civil libel action brought not by a "public official" or a "public figure" but by a private individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual's involvement in an event of public or general interest Held: The actual malice standard applies.

* The Defendant‘s failure to retract the advertisement upon the Plaintiff‘s demand is not adequate evidence of malice for constitutional purposes. Likewise, it is not adequate evidence of malice that the Defendant failed to check the advertisements accuracy against the news stories in the Defendant‘s own files. Also, the evidence was constitutionally defective in another respect: it was incapable of supporting the jury‘s finding that the allegedly libelous statements were made of and concerning the Plaintiff.

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. The present case illustrates the point.

Discussion. In order for a public official to recover in a defamation action involving his official conduct, malice must be proved. Without the showing of malice, the Supreme Court felt that a defamation action in this case would severely cripple the safeguards of freedom speech and expression that are guaranteed in the First Amendment of the Constitution and applicable to the States via the Fourteenth Amendment of the Constitution.

The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as obscenity where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous largescale magazine distributor or a "private" businessman running a corner newsstand has no relevance in ascertaining whether the public has an interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment, by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.

#93 Rosenbloom v Metro Media, Inc.

#94 Ayer Production v Judge Capulong

Facts:

Facts:

In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. Respondent Metromedia‘radio station, which broadcast news reports every half hour, broadcast news stories of petitioner Rosenbloom‘s arrest for possession of obscene literature and the police seizure of "obscene books," and stories concerning

Petitioner McElroy an Australian film maker, and his movie production company, Ayer Productions, envisioned, sometime in 1987, for commercial viewing and for Philippine and international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as and

Concurrence. Justice Hugo Black (J. Black) argued that the First and Fourteenth Amendments of the Constitution do not merely ―delimit‖ a State‘s power to award damages, but completely prohibit a State from exercising such a power. The Defendant had an absolute, unconditional right to publish criticisms of the Montgomery agencies and officials.

other government agencies consulted. Ramos also signified his approval of the intended film production.

It is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama"style, creating four fictional characters interwoven with real events, and utilizing actual documentary footage as background. David Williamson is Australia's leading playwright and Professor McCoy (University of New South Wales) is an American historian have developed a script. Enrile declared that he will not approve the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation. Petitioners acceded to this demand and the name of Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. However, a complaint was filed by Enrile invoking his right to privacy. RTC ordered for the desistance of the movie production and making of any reference to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears substantial or marked resemblance to Enrile. Hence the appeal. Issue: Whether or Not freedom of expression was violated. Held: Yes. Freedom of speech and of expression includes the freedom to film and produce motion pictures and exhibit such motion pictures in theaters or to diffuse them through television. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. The projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy. Subject matter is one of public interest and concern. The subject thus relates o a highly critical stage in the history of the country. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, Enrile was a "public figure:" Such public figures were held to have lost, to some extent at least, their right to privacy. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. #95 Soliven vs. Judge Makasiar, Beltran Facts:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when information for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President; and (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988.On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support. Issue: Whether or Not petitioners were denied due process when information or libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President. Whether or Not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause Held:

With respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counteraffidavits. Due process of law does not require that the respondent in a criminal case actually file his counteraffidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded.

be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction onthe part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos.82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

―Fighting Words‖, Offensive Words

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to

Brief Fact Summary. Chaplinsky was convicted under a State statute for calling a City Marshal a ―God damned racketeer‖ and a ―damned fascist‖ in a public place.

#96 Chaplinsky v. New Hampshire

Synopsis of Rule of Law. ―Fighting words‖ are not entitled to protection under the First Amendment of the United States Constitution (Constitution) Facts Chaplinsky, a Jehovah's Witness, made several statements denouncing organized religion while distributing religious literature on a public street. Several citizens complained to the city marshal that Chaplinsky's message was offensive. The marshal informed the citizens that Chaplinsky was lawfully engaged but warned Chaplinsky that the crowd was getting restless. A disturbance subsequently occurred, and an officer on duty proceeded to escort Chaplinsky, without placing him under arrest, to the police station. En route, they encountered the city marshal, whereupon Chaplinsky proclaimed, "You are a God damned racketeer" and "a damned fascist." For these words, Chaplinsky was convicted of violating a New Hampshire statute prohibiting the use of offensive or annoying words when addressing another person in public. Claiming that the statute placed an unreasonable restraint on free speech, Chaplinsky appealed his conviction. Issue Whether or not the statute or the application of the statute to Chaplinsky‘s comments violate his free speech rights under the First Amendment of the Constitution. Held No. The lower court is affirmed. Considering the purpose of the First Amendment of the Constitution, it is obvious that the right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include ―fighting words,‖ words that inflict injury or tend to excite an immediate breach of the peace. Such words are of such little expositional or social value that any benefit they might produce is far outweighed by their costs on social interests in order and morality. The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law, has defined the Statute as applying only to ―fighting words‖. Therefore, the Statute does not unconstitutionally impinge upon the right of free speech. Discussion. By holding that ―fighting words‖ are not protected forms of speech the Supreme Court of the United States (Supreme Court) announced a rare form of content based restriction on speech that is permissible. The student should consider what characteristics distinguish a ―fight word‖ from a bona fide criticism. One difference may lie in the speaker‘s intent. ―Fighting words‖ are intended to inflict harm, bonafide criticisms are intended to communicate ideas. Another difference may lie in the differing likely effects of each: ―fighting words‖ are likely to provoke the average person to violence while bona fide criticisms are not.

#97 Cohen v California Facts: The Defendant was convicted under a California law for wearing a jacket that had on it, ―F— the draft‖ outside the municipal courthouse during the Vietnam War. The Defendant did not threaten or engage in any act of violence. The state court affirmed his conviction holding that ―offensive conduct‖ means ―behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace.‖ Issue: Whether California can excise, as ―offensive conduct,‖ one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reactions or upon a more general assertion that the states, acting as guardians of the public morality, may properly remove this offensive word from the public vocabulary? Held: No. Judgment of the lower courts reversed. Defendant‘s speech is protected by the First Amendment of the United States Constitution (Constitution). The only conviction that the state sought to punish was communication. Thus, this case rests solely upon ―speech.‖ The state lacks power to punish Defendant for the content of his message because he showed no intent to incite disobedience to the draft. Thus, his conviction rests upon his exercise of the ―freedom of speech‖ and can only be justified as a valid regulation of the manner in which he exercised that freedom. This is not an obscenity case because his message is not erotic. This case does not involve ―fighting words‖ because his message is not directed at another person. Further, the public is free to avert their eyes from the distasteful message. His message constitutes emotive speech because it seeks to get our attention. This speech is protected by the First Amendment of the Constitution. Therefore, his conviction must be overturned. Obscenity #98 Roth vs California Facts.The Defendant, Mr. Roth was convicted of mailing obscene advertising and an obscene book in violation of a federal statute barring the mailing of ―obscenity.‖ He was convicted under a California law for ―lewdly keeping for sale obscene and indecent books‖ and ―publishing an obscene advertisement of them.‖ Issue: Whether obscenity is utterance within the area of protected speech and press? Holding. No. Judgment of the lower court affirmed. In light of history, it is apparent that the phrasing of the First Amendment of the Constitution was not intended to protect every utterance. Implicit in the history of the First Amendment of the Constitution is the rejection of obscenity as utterly without redeeming social importance. Sex and obscenity are not synonymous. Obscenity is not within the area of protected speech and press. The test for obscene material is whether the average person, applying contemporary community standards, the dominant theme of

the material taken as a whole appeals to the prurient interest. This test provides safeguards adequate to withstand the constitutional infirmity. Obscenity is not within the area of protected speech and press. Therefore obscenity is unprotected speech. #99 Miller v. California Brief Fact Summary. The Defendant, Miller‘s (Defendant) conviction for mailing advertisements for ―adult‖ books to unwilling recipients was vacated and remanded in an effort to shift the burden of obscenity determinations to the state and local courts. Synopsis of Rule of Law. In determining whether speech is obscene, the basic guidelines for the trier of fact must be: (a) whether ―the average person, applying contemporary community standards‖ would find the material, taken as a whole, appeals to the prurient interest of sex, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literacy, artistic, political, or scientific value. Facts. The Defendant was convicted under the California Penal Code for mailing advertisements for ―adult‖ material to non-soliciting recipients. Issue. Whether state statutes may regulate obscene material without limits? Held. No. Judgment of the lower court vacated and remanded for further proceedings. In determining whether speech is obscene, the basic guidelines for the trier of fact must be: (a) whether ―the average person, applying contemporary community standards‖ would find the material, taken as a whole, appeals to the prurient interest of sex, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literacy, artistic, political, or scientific value. The Supreme Court of the Untied States (Supreme Court) does not adopt as a constitutional standard the ―utterly without redeeming social value‖ test. If a state law that regulates obscene material is thus limited, as written or construed, First Amendment constitutional values are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. Dissent. To send men to jail for violating standards that they cannot understand due to vagueness, denies them of due process. The statute in question is overbroad and thus, unconstitutional. Discussion. This case attempts a new definition and clarification of obscenity while also trying to shift the burden of obscenity determinations to the state and local courts.

#100 Jose Antonio U. Gonzalez In Behalf Of Malaya Films, Lino Brocka, Jose F. Lacaba, And Dulce Q. Saguisag, Petitioners, vs.

freedom "may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment.

Chairman Maria KalawKatigbak, General Wilfredo C. Estrada (Ret.), And The Board Of Review For Motion Pictures And Television (Brmpt), Respondents.

This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if there be a clear and present danger of a substantive evil that [the State] has a right to prevent. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is, however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. To avoid an unconstitutional taint on its creation, the power of the Board is limited to the classification of films.

enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. #101 Pita vs CA

Facts: The principal petitioner is Jose Antonio U. Gonzalez, President of the Malaya Films. The respondent is the Board of Review for Motion Pictures and Television (BRMPT), with Maria KalawKatigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. On October 23, 1984, a permit to exhibit the film KapitsaPatalim under the classification "For Adults Only" with certain changes and deletions enumerated was granted by a sub-committee of the BRMPT. Motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. For petitioners, such classification is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for its classification. The respondents in their answer submitted that the standard of the law (Executive Order 878) for classifying films afford a practical and determinative yardstick for the exercise of judgment. For them, the question of the sufficiency of the standards remains the only question at issue. Issue: Whether the Board of Review for Motion Pictures and Television have the power to classify the movie ―KapitsaPatalim‖ under the classification ―For Adults Only‖ and impose conditions to edit the material to allow it a ―General patronage‖ rating.

Held: YES. Petition dismissed. Motion pictures are important both as a medium for the communication of ideas and the expression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits are considerable. The "importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform." There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Press

It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity. The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable. The basic postulate, therefore, is that where the movies, theatrical productions, radio scripts, television programs, and other such media of expression are concerned — included as they are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, public morals, public health or any other legitimate public interest. There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor." The law, however, frowns on obscenity. All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. There was an abuse of discretion by the Board in the light of the difficulty and travail undergone by Gonzales, et. al. before ―KapitsaPatalim‖ was classified as "For Adults Only," without any deletion or cut. Moreover the Board‘s perception of what constitutes obscenity appears to be unduly restrictive. The Court concludes thus that there was an abuse of discretion. Nonetheless, there are not

Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student organizations. Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and coedited by plaintiff Leo Pita. Plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin said defendants and their agents from confiscating plaintiff‗s magazines or from preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of freedom of speech and of the press. Plaintiff also filed an Urgent Motion for issuance of a temporary restraining order against indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction. The Court granted the temporary restraining order. The case was set for trial upon the lapse of the TRO. RTC ruled that the seizure was valid. This was affirmed by the CA. Issue: Whether or Not the seizure violative of the freedom of expression of the petitioner. Held: Freedom of the press is not without restraint as the state has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications. However, It is easier said than done to say, that if the pictures here in question were used not exactly for art's sake but rather for commercial purposes, the pictures are not entitled to any constitutional protection. Using the Kottinger rule: the test of obscenity is "whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall." Another is whether it shocks the ordinary

and common sense of men as an indecency. Ultimately "whether a picture is obscene or indecent must depend upon the circumstances of the case and that the question is to be decided by the "judgment of the aggregate sense of the community reached by it." The government authorities in the instant case have not shown the required proof to justify a ban and to warrant confiscation of the literature First of all, they were not possessed of a lawful court order: (1) finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant. The court provides that the authorities must apply for the issuance of a search warrant from a judge, if in their opinion an obscenity seizure is in order and that;1. The authorities must convince the court that the materials sought to be seized are obscene and pose a clear and present danger of an evil substantive enough to warrant State interference and action;2. The judge must determine whether or not the same are indeed obscene. The question is to be resolved on a case-tocase basis and on the judge‗s sound discretion;

―Defamation and Discrimination‖ in C. MacKinnon, Only Words #102 Reno v. American Civil Liberties Union Citation. 521 U.S. 844,117 S. Ct. 2329,138 L. Ed. 2d 874,1997 U.S. Brief Fact Summary. Two provisions of the Communications Decency Act of 1996 (CDA) that criminalized providing obscene materials to minors by on the internet were held unconstitutional by the Supreme Court of the United States (Supreme Court). Synopsis of Rule of Law. Where a content-based blanket restriction on speech is overly broad by prohibiting protected speech as well as unprotected speech, such restriction is unconstitutional. Facts. At issue is the constitutionality of two statutory provisions enacted to protect minors from ―indecent‖ and ―patently offensive‖ communications on the Internet. The District Court made extensive findings of fact about the Internet and the CDA. It held that the statute abridges the ―freedom of speech‖ protected by the First Amendment of the United States Constitution (Constitution). Issue. Whether the two CDA statutory provisions at issue are constitutional? Held. No. Judgment of the District Court affirmed. Under the CDA, neither parents‘ consent nor their participation would avoid application of the statute. The CDA fails to provide any definition of ―indecent‖ and omits any requirement that the ―patently offensive material‖ lack serious literary, artistic,

political or scientific value. Further, the CDA‘s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. CDA applies to the entire universe of the cyberspace. Thus, the CDA is a content-based blanket restriction on speech, as such, cannot be properly analyzed as a form of time, place and manner restriction. The CDA lacks the precision that the First Amendment of the Constitution requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the statute suppresses a large amount of speech that adults have a constitutional right to receive. The CDA places an unacceptable burden on protected speech, thus, the statute is invalid as unconstitutional. Concurrence. The constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the ―display‖ provision and by the ―indecency transmission‖ provision, the judge would invalidate the CDA only to that extent. Discussion. This case brings the First Amendment of the Constitution into the Internet age while prohibiting speech regulations that are overbroad despite their seemingly benevolent goals. #103 John D. Ashcroft v. American Civil Liberties Union Brief Fact Summary. Internet content providers and civil liberties groups sued United States Attorney General, claiming that Child Online Protection Act (COPA) violated their First Amendment rights. They are seeking preliminary injunction of enforcement. Synopsis of Rule of Law. When there is a challenge on a content-based speech restriction under First Amendment, the burden of proof is on the government to prove that proposed alternatives will not be as effective as challenged statute. Facts. Congress passed the Child Online Protection Act (COPA) to avert minors from having access to pornography on the internet. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The District Court agreed. On appeal, a Third Circuit Court of Appeals panel affirmed, the Court held that because the act used "community standards" to determine which material was harmful to minors, it would bar material that was offensive in the most "puritanical" communities from being displayed in more "tolerant" ones. Issue. Whether the Child Online Protection Act's requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive?

Held: Yes. The Court held that Internet content providers and civil liberties groups were likely to prevail on the claim that COPA violated First Amendment by burdening adults‘ access to some protected speech. Affirmed and remanded. Justice Anthony Kennedy, in the majority opinion, wrote that the district court's injunction "was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute." The majority also emphasized that barring the statute's enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material. The Supreme Court ruled that the "community standards" provision alone did not make the act unconstitutional and sent the case back to the Third Circuit. Upon revision, the Third Circuit again prohibited implementation of the act, holding that it was likely to fail the "strict scrutiny" test due to the fact that it was not narrowly tailored – that is, it prevented online publishers from publishing some material that adults had a right to access – and because it did not use the least restrictive means possible to protect children (the court found that blocking software installed on home computers by parents would do as good a job without preventing free speech). For similar reasons, the panel found that the act was unconstitutionally "overbroad" – that is, it applied to too much protected material. Discussion. When determining whether alternatives would be as effective as a content-based speech restriction, the court first assumes that the certain speech may be regulated and then proceeds to consider what the least restrictive approach is.