Ultimate Reviewer 2

1 Constitutional Law II Reviewer

University of the Philippines Ultimate Constitutional Law 2 Reviewer Prof. Roque’s Midterm Exam. Mike. Rod. Tin. Pau. Che. Meanne. Zsa Zsa. Migs. Weng. Sheryl. Note: You may use the sentences or paragraphs as your answer to the exam. Remember to underline the cases and the provisions that you will cite. Memorize provisions other than Art III which are found in the syllabus. For Consti I questions, trust your stock knowledge but it would really help reading the whole Consti. Always answer intelligently, even when you’re just bluffing. You may opt to use the ILAC form (Issue, Law, Argument, Conclusion). Procedural Due Process In the early history, due process was understood chiefly to the mode of procedure which government agencies must follow; it was understood as a guarantee of procedural fairness. Its essence was expressed by Daniel Webster as a “law which hears before it condemns” In the famous Dartmouth college case, Mr. Webster argued that due process is that “which proceeds upon enquiry, and renders judgment only after trial. It contemplates notice and opportunity to be heard before judgment is rendered, affecting one’s person or property”. In the Philippine jurisprudence, there are several attempts to define the concept of due process and many of our jurisprudence have fused the elements of both procedural due process and substantive due process as well as the elements of the equal protections which make the generalized definition of the concept. Due Process Not Always A Judicial Process Procedural due process is not always a judicial process and frequently, legal controversies have to be decided not by the courts

but by administrative bodies. Administrative bodies are not bound by the finer point of judicial due process but are nevertheless bound by the due process clause (Bernas). Our cases include Court of Industrial Relations (Ang Tibay vs. CIR) as an administrative court which exercises judicial and quasijudicial functions in the determination of disputes between employers and employees. National Telecommunications Company (PHILCOMSAT vs. Alcuaz), National Labor Relations Commission or NLRC (DBP vs. NLRC) and school tribunals (Ateneo vs. CA-Board of Discipline, Alcuaz vs. PSBA, Non vs. Judge Dames, Tinker vs. Des Moines Community School District) also are clothed with quasijudicial function. It is a question of whether the body or institution has a judicial or quasi-judicial function that makes it bound by the due process clause. (Judicial function is synonymous to judicial power which is the authority to settle justiciable controversies or disputes involving rights that are legally enforceable and demandable or the redress of wrongs for violations of such rights. It is a determination of what the law is and what the legal rights of the parties are with respect to a matter in controversy). Requisites in Administrative Proceedings Which Must Exercise Judicial Or Quasi-Judicial Functions In Ang Tibay vs. CIR, the Court laid down cardinal requirements in administrative proceedings which essentially exercise a judicial or quasi-judicial function. These are: 1. the right to a hearing, which includes the right to present one’s case and submit evidence in support thereof 2. The tribunal must consider the evidence presented 3. The decision must have something to support itself 4. The evidence must be substantial. Substantial evidence means such a reasonable evidence as a reasonable mind might accept as adequate to support a conclusion

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5. The decision must be based on the evidence presented at the hearting or at least contained in the record and disclosed to the parties affected 6. The tribunal or body of any of its judges must act on its own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate 7. The Board or body should, in all controversial questions, render its decision in such manner that the parties to the proceeding can know the various issues involved and the reason for the decision rendered. Also the Court has set down the procedure which educational institutions must follow. Due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and crossexamination is not an essential part thereof. The minimum standards set by the Court to satisfy the demands of procedural due process are: 1. The students must be informed in writing of the nature and cause of any accusation against them 2. They shall have the right to answer the charges against them with the assistance of counsel, if desired 3. They shall be informed of the evidence against them 4. They shall have the right to adduce evidence in their own behalf 5. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. (PSBA vs. Alcuaz) It is a general rule that the notice and hearing are not essential to the validity of administrative body acts in the exercise of executive, administrative or legislative functions; but where public administrative body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and

prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing (PHILCOMSAT vs. Alcuaz). Not Actual Hearing But The Opportunity To Be Heard The heart of procedural due process is the need for notice and an opportunity to be heard. Moreover, what is required is not actual hearing but a real opportunity to be heard. Thus, one who refuses to appear at a hearing is not thereby denied due process if a decision is reached without a warning for him (Ateneo vs. CA). Likewise, the requirement of due process can be satisfied by subsequent due hearing (remember Sir Lumba’s example of the nuclear bomb: notice may be served after detonation of the bomb). In Banco Espanol Filipino vs. Palanca which is a case of foreclosure, some notification of the proceedings to the non-resident owner is essential which must prescribe the time within which appearance must be made. This necessitates a publication or a personal notice thru mail if the residence of the non-resident is known. This is constructive service or notice which is a means provided by law whereby the owner may be admonished that his property is the subject of judicial proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. Since property is assumed to be in the possession of its owner, in person or by an agent, he may be safely held to be affected with knowledge that a proceeding has been instituted against his property. So that when the effectiveness of the means of notification falls short, presumption of possession takes place and the owner also has the duty to inspect the status of his property. Purposes of Procedural Due Process According to Bernas, as a rule of fairness, procedural due process helps achieve two purposes. Instrumentally, it contributes to accuracy and thus minimizes errors in deprivations. More

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intrinsically to the person who is the subject of deprivation, it gives him a sense of rational participation in a decision that can affect his destiny and thus enhances his dignity as a thinking person (quotable lang). When Is There A Violation of Due Process It has been recently held that, while fairness is not violated in administrative proceedings when the hearing officer is not the same person who decides the case, there is violation of due process when the officer who reviews a case is the same person whose decision is on appeal. It has also been held that, while notice and hearing are required in judicial and quasi-judicial proceedings, they are not prerequisites in the promulgation of general rules. But fixing rates, being a quasi-judicial process, requires hearing (PHILCOMSAT vs. Alcuaz). In Goldberg vs. Kelly, it was held that due process requires an adequate hearing before termination of welfare benefits. The constitutional challenge cannot be answered by an argument that public assistance benefits are just a privilege and not a right. It is crucial to consider that the termination of aid pending resolution may deprive an eligible recipient of the very means by which to live while he waits. What will serve due process in a case like this is pre-termination evidentiary hearing which will not take form of a judicial or quasi-judicial trial but just a full administrative review and informal procedures such as appearing personally before the official who determines eligibility or at the very least, the government must show evidence to prove the need for the termination of the benefits and disclose that to the individual receiving them so that he may have the opportunity to counter if it is untrue. In Bell vs. Burson, it was stated that the suspension of licenses involves a state action that adjudicates important interests in licenses. In such cases, the licenses are not to be taken without the procedural due process required by the 4th Amendment because

these licenses, once issued, may become essential in the pursuit of livelihood as in this case. The person, whose license was suspended because of his failure to post a security to cover the amount of damages caused by the accident, is deprived of the chance to proffer evidence on liability. In Estrada vs. Sandiganbayan, it was held that there was no violation of due process because the nature of the charges against the petitioner is not uncertain and void merely because general terms are used or because it employed terms that were not defined. The Anti-Plunder law does not violate due process since it defines the act which it purports to punish, giving the accused fair warning of the charges against him, and can effectively interpose a defense against on his behalf. OLD SUBSTANTIVE DUE PROCESS (Protection for Property Interests) If all that the due process clause requires is proper procedure, then life, liberty, and property can be destroyed provided proper forms are observed. Such an interpretation, evidently, makes of the due process clause a totally inadequate protection for personal and property rights. The due process clause must be interpreted both as a procedural and a substantive guarantee. It must be a guarantee against the exercise of arbitrary power even when the power is exercised according to proper forms and procedure. The requirement of substantive due process, however, is not a rigid concept. The heart of substantive due process is the requirement of “reasonableness,” or absence of exercise of arbitrary power. These are necessarily relative concepts which depend on the circumstances of every case.1

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Bernas, p.38 “Constitutional Rights and Social Demand Part II”

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CALDER v BULL (Focus on the property aspect vis-à-vis the Bill of Rights ) A resolution was passed by the Legislature of Connecticut that had the effect of divesting the “right” that accrued to Calder and Wife when the Court of Probate disapproved the will of Normand Morrison executed in favor of Bull and Wife. The resolution granted a new hearing in the court of probate. The new hearing approved the will of Morrison. Issue: Whether the resolution violated due process in contravention of the Constitution. Ruling: Due process was not violated. The 1st decree against the will of Normand Morrison did not transfer any vested right to Calder and Wife. A vested right means that the person has the power to do certain actions and possess things according to the law of the land. If any one has a right to property, such right is a perfect and exclusive right. No one can have such right before he has acquired a better right to the property than any other person in the world. The Resolution combined with the new hearing and the decision took away no right vested in Calder and Wife since the decree against the will did not vest or transfer any property right to them in the first place.

LOCHNER v NEW YORK Lochner was charged with violation of the labor laws of New York for wrongfully and unlawfully permitting an employee to work more than 60 hours in one week. The statute allegedly violated mandates that no employee shall contract or agree to work more than 10 hours per day.

Issue: Whether the statute is unconstitutional. Ruling: Yes. The statute is unconstitutional. The statute interferes with the liberty of a person and the right of free contract between employer and employee by determining the hours of labor in the occupation of a baker without reasonable ground for doing so. The general right to make a contract in relation to one’s business is a liberty protected by the 14th amendment.2 The state may interfere with and regulate both property and liberty rights to prevent the individual from making certain kinds of contracts in its exercise of police power which relates to safety, health, morals and general welfare of the society. In this instance, the 14th amendment cannot interfere. The trade of a baker is not an alarmingly unhealthy one that would warrant the state’s interference with rights to labor and contract. Doctrine: The rule must have a more direct relation, as means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. PEOPLE v POMAR Pomar was charged for refusing to pay his pregnant employee in violation of the statue ordering employers to give pregnant women employees 30 days vacation with pay before and after confinement. Issue: Whether the statute was adopted in the reasonable and lawful exercise of the police power of the state. 2

No state can deprive any person of life, liberty or property without due process of law.

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Ruling: NO. The statute is not a reasonable and lawful exercise of police power. The right to contract about one’s own affairs is a part of the liberty of the individual under the Constitution, and while there was no such thing as absolute freedom of contract, and it was necessarily subject to a great variety of restraints, yet none of the exceptional circumstances, which at times justify a limitation upon one’s right to contract, apply in this case. (citing Adkins v Children’s Hospital of the District of Columbia) The right of liberty includes the right to enter into contracts and to terminate contracts. The statute violates liberty of contract without due process. It takes into account only the welfare of the employee but fails to consider periods of distress in the business. The statute creates a mandatory term in any contract entered into by an employer. It violates right to enter into contract upon terms which parties may agree to. NDC and AGRIX v PHIL VETERANS AGRIX invoked PD 1717, which extinguishes all mortgages and other liens attaching to any of the assets of the dissolved corporations, in order to stop the foreclosure of its assets mortgaged to PVB. Issue: Whether PD 1717 violates the due process clause of the constitution. Ruling (on due process): YES. PD 1717 is a violation of due process. The right to property is dissolved by legislative fiat without regard to the private interest involved. The public is not sufficiently involved to warrant the interference of the government with the private contracts of Agrix.

PD 1717 is an invalid exercise of police power, not being in conformity with the traditional requirements of a lawful subject and a lawful method. The extinguishment of the mortgage and other liens constitutes taking without due process of law. PEOPLE v NAZARIO Nazario refused to pay taxes for the operation of the fishponds he leased from the government in violation of the municipal ordinances. Issue: Whether the municipal ordinances are unconstitutional for vagueness? Ruling: NO. The municipal ordinances are not unconstitutional for vagueness. A statute may be said to be vague if it lacks comprehensible standards that men “of common intelligence must necessarily guess at its meaning and differ as to its application.” It is repugnant to the Constitution because: 1. It violates due process for failing to accord persons fair notice of the conduct to avoid; 2. It gives law enforcers unbridled discretion in carrying it out. The assailed ordinances cannot be said to be tainted by vagueness because it clearly provides what activity is to be avoided and to whom the law applies. BALACUIT v CFI Owners of theaters assail the constitutionality of an ordinance for being violative of due process as it orders that admission tickets of children in movie houses and other places of amusements should be half the price of that of adults. Issue: Whether the ordinance is a valid exercise of police power.

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Ruling: The ordinance is not a valid exercise of police power for lack of lawful subject / lawful purpose. The ordinance is not justified by any necessity of public interest. The evident purpose of it is to reduce the loss in savings of parents, in turn passing the buck to the theater owners. The contention of the city that they are preventing the movie houses from exploiting children is not tenable. The means are clearly unreasonable. How can the theater operators distinguish between a 13-year old and an 11-year old child? AGUSTIN v EDU Petitioner assails the constitutionality of Letter of Instruction No. 229 which provides for the mandatory use of early warning device for all motor vehicles. The petitioner asserts that his vehicle which is already equipped with blinking lights could well serve as an early warning device. Issue: Whether LOI 229 is not unconstitutional. Ruling: YES. LOI 229 is not unconstitutional. It is a valid exercise of police power insofar as it promotes public safety. Early warning devices have a clear emergency meaning, whereas blinking lights are equivocal and would increase accidents. New Substantive Due Process: Protection for “Liberty” Interests in Privacy Olmstead vs. US Wiretapping was not an unreasonable search and seizure within the meaning of the Fourth Amendment.

Dissenting Opinion of Justice Brandeis: The language of the Constitution guarantees everyone basic rights to liberty and privacy. The Fourth3 and Fifth4 Amendments were adopted to protect against government intrusion and “such invasion of the sanctities of a man’s home and the privacies of life.” The dissenting opinion of Justice Brandeis introduces as to the “right to be let alone” as an inherent right that is protected by the Constitution. In his words, “The makers of the Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect…They sought to protect Americans in their beliefs, thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of the rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth. Skinner vs. Oklahoma

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US Consti, 4th Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 4 5th Amendment: No person…shall be compelled in any criminal case to be a witness against himself.

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The Supreme Court struck down a law allowing the involuntary sterilization of criminals for violation of the Equal Protection Clause of the Fourteenth Amendment. In the decision, the court recognized that marriage and procreation was a fundamental right which belonged to all citizens. As such, the government had a high burden of proof before it could reasonably argue that it could deprive someone of it. Please take note: 1. There are limits to the so-called ‘presumption of constitutionality’, especially where the liberty of a person is concerned. 2. “A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation is lacking in the first principles of due process. 3. While the state may protect itself from demonstrably inheritable tendencies of the individual which are injurious to the society, the most elementary notions of due process would seem to require it to take appropriate steps to safeguard the liberty of the individual by affording him, before he is condemned to an irreparable injury to his person, some opportunity to show that he is without such inheritable tendencies. Griswold vs. Connecticut A Connecticut statute making it a crime to use any drug or article to prevent conception violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights. Although the Bill of Rights does not mention ‘privacy’ the Court ruled that that the right was to be found in the "penumbras" of other constitutional protections. “The First Amendment has a penumbra where privacy is penumbra where privacy is protected from governmental intrusion.”

Eisenstandst vs. Baird A statute prohibiting the distribution of contraceptives to unmarried persons is violative of the Equal Protection Clause of the Constitution. In Griswold, the right to privacy was applied to marital relationships. In this case, the Court extended this ruling to unmarried couples, where the "right of privacy" is defined as the right of individuals, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person. Poe vs. Ullman Court did not grant relief to couples against the threatened enforcement of Connecticut Law prohibiting the use of Contraceptives. Please take note:

1. In the dissenting opinion of Justice Harlan, he wrote that “the statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct f the most intimate concerns of an individual’s personal life. The statute in question deprives individuals of a substantial measure of liberty in carrying on the most intimate of all personal relationships, and it does so arbitrarily and without any rational, justifying purpose. 2. Dissenting opinion of Justice Douglas: The regulation touches on the relationship between a man and wife and reaches into the intimacies of the marriage relationship. When the State makes use of a crime and applies the

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criminal sanction to man and wife, the State has entered the innermost sanctum of the home.

In this case, the Court held that the right to privacy did not extend to private, consensual sexual conduct involving same-sex sodomy.

Roe vs. Wade

Dissenting Opinion of Justice Blackmun:

The Court held that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother's womb.

The statute interferes with constitutionally protected interest in privacy and freedom of intimate association…These rights are protected, not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part on an individual life.

1. The Constitution does not explicitly mention any right to privacy but the Court has recognized that such right does exist in the Constitution. The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest.” 2. The right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. But a woman’s right to terminate her pregnancy at whatever time, in whatever way and for whatever reason she alone chooses is NOT absolute. While recognizing the right to privacy, the Court also acknowledges that some state regulation in areas protected by a right is appropriate. A state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.

The right of the individual to conduct intimate relationships in the intimacy of his or her own home seems to be the heart of the Constitution’s protected privacy. Lawrence vs. Texas In this landmark case, the court struck down the statute making it a crime for two persons of the same sex to engage in intimate sexual conduct for violation of the Due Process clause The court recognizes the right to engage in intimacy. Such right of individuals to engage in private conduct is in the “exercise of their liberty under the Due Process Clause.” “Liberty protects the person from unwanted government intrusions into a dwelling or other private places.” This liberty includes the right of individuals to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free person.

Bowes vs. Hardwick (overruled by Lawrence vs. Texas)

Board of Educators v. Earls

The Court upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults.

The Court ruled that mandatory drug testing of students in extracurricular activities was constitutional.

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The Court held that the policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, it is therefore constitutional. The Court reasoned that the Board of Education's general regulation of extracurricular activities diminished the expectation of privacy among students and that the Board's method of obtaining urine samples and maintaining test results was minimally intrusive on the students' limited privacy interest. “Moreover, the policy is a reasonable means of furthering the School district’s important interest in preventing and deterring drug use among its schoolchildren and does not violate the Fourth Amendment.

Power of State Objective

the

Just Compensation Property Interest

Ople vs. Torres The right to privacy being a fundamental right, the government has the burden of proof to show that a statute (AO no. 308 in this case) is justified by some compelling state interest and that it is narrowly drawn. “In no uncertain terms, we also underscores that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused.” Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. Duncan vs. Glaxo Welcome The Court in this case that the company policy in prohibiting employees from having personal relationships with employees of cometitor companies is a valid exercise of its management prerogatives and not a violation of the equal protection clause. II. D. PROTECTED INTEREST IN PROPERTY Mere “Regulation” under the Due Process Clause vs. “Taking” of Property via the Power of Eminent Domain

Right ownership property

of to

Due Process Requirements

REGULATION Police Power

TAKING Eminent Domain

Uphold welfare/interest Not required

Public Use

public

Required

Property interest is merely restricted/regulated because continued unrestricted use would be injurious to the public welfare/interest Use of property by the owner was limited, but NO aspect of the property was USED BY or FOR the PUBLIC

Property interest is appropriated and applied to PUBLIC USE/PURPOSE

POLICE POWER 1. there is “regulation” of private property (property may still be used for other

EMINENT DOMAIN 1. there is “taking” of private property (owner can no longer use the

Permanent deprivation of the right to use own property; title may or may not be transferred to the expropriating authority (e.g. People vs Fajardo does not involve transfer of title)

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purposes) 2. private must be with interest” 3. regulation for public or interest

property “imbued public must be purpose

o police power – where the benefits he derives

property) 2. the taking must be for “public use” 3. there must be “just compensation”

Taking – Jurisprudence: Churchill vs. Rafferty (Police Power/Regulating Nuisances) In this case, the court upheld the validity of a portion of a statute authorizing the CIR to remove any sign, signboard, or billboard found by him to be offensive to the sight or otherwise a nuisance • The use of private property may be regulated or restricted to whatever extent may be necessary to preserve inviolate the public welfare; this includes properties offensive to the senses of smell or hearing • Billboards, which are a source of annoyance and irritation to the public and interfere with the proper enjoyment of outdoor life by the general public justifies their suppression or regulation to the extent that they interfere with the right of the public. • State interference with the use of private property may be exercised in three ways: o taxation – where the individual receives the equivalent of the tax in the form of protection or benefit he receives from the government as such o eminent domain – where he receives the market value of the property taken from him)

are only such as may arise from the maintenance of a healthy economic standard of society and is often referred to as damnum absque injuria

US vs. Toribio In this case, the Court ruled that the restriction placed upon the use of carabao is reasonable and proper exercise of police power to alleviate famine. • Police power rests upon public necessity and upon the right of the state and of the public to self-protection • Justification of state Regulation: o Public interest o Means are reasonably necessary for the accomplishment of the purpose o Means/method is not unduly oppressive upon individuals o Legislative determination of what is proper exercise of police power is not final or conclusive, but is subject to court supervision • Principal yardstick against which such exercise must be measured are the due process clause and the equal protection clause

ART. 3 SEC. 9: PRIVATE PROPERTY

SHALL NOT BE

TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION

People vs. Fajardo

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In this case, the Court ruled that the municipal ordinance requiring prior written building permits from the mayor was null and void for being oppressive and unreasonable since it permanently deprive appellants of the right to use their own property. Hence, it oversteps the bounds of police power and amounts to a taking of appellants’ property without just compensation. • The Court found that the said ordinance fails to state any policy or to set up any standard to guide or limit the mayor’s action; expresses no purpose to be attained by requiring a permit; enumerates no conditions for its grant or refusal; and entirely lacks standards thus conferring upon the mayor arbitrary and unrestricted power to grant or deny the issuance of building permits. • Test of validity of municipal ordinances: o must specify the rules and conditions to be observed o must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions o must not admit of the exercise or of an opportunity for the exercise of any arbitrary discrimination by the municipal authorities between citizens who will so comply • While property may be regulated in the interest of the general welfare, the state may not, under the guise of police power, permanently divest owners of the beneficial use of their property and practically confiscate them solely to preserve or assure the aesthetic appearance of the community • Municipality must give appellants just compensation and opportunity to be heard Ynot vs. IAC

The Court here ruled that the ban on transportation of carabao under the assailed ordinance and their outright confiscation and disposal without court hearing is a violation of due process hence it is an invalid exercise of police power. • The court adopted the measures laid down in the Toribio case • Protection general welfare is a function of police power which both restrains and is restrained by due process, which requires notice and hearing • Case emphasized the need to have a lawful method to follow due process requirement • Reasons why ordinance is invalid: o No reasonable connection between means employed (absolute ban on movement of carabeef) and purpose sought to be achieved (conservation of carabao for general welfare) o Unduly oppressive since petition not given due process or opportunity to be heard in proper court

Republic vs PLDT In this case, the Court ordered the PLDT to allow the reconnection of telephone lines of the Republic. • No cogent reason appears why Eminent Domain may be availed of to impose only a burden upon the owner of condemned property without loss of title or possession for public use subject to just compensation • Case highlights that even services may be subjected to eminent domain

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• Republic vs Castellvi The case is an expropriation proceeding and the court discussed determination of just compensation. • Elements of valid “Taking” of property o Expropriator must enter a private property o Entrance must be for more than a momentary period o Entry under warrant/color of legal authority o Property devoted for public use o Utilization for public use deprives him of all beneficial employment of the property • Just compensation shall be determined as of the date of filing of expropriation proceeding

•

Case emphasized that COURTS have the power to determine just compensation in the proper expropriation proceedings and cannot be usurped by legislative or executive actions Doctrine of Just Compensation means the equivalent for value of property of the owner at the time of its taking; the fair and full equivalent for the loss sustained of the owner, which is the measure of indemnity, and not whatever gain would accrue the expropriating entity

NPC vs CA The Court here emphasized again that the basis of compensation are (1) the price and value of the land and (2) the land’s character at the time it was taken by the Government.

Bel-Air Assoc. vs IAC The Court acknowledged that the opening of Orbit St. in Makati to public access is a valid exercise of police power and warranted by the demand of common good. • The gate that was destroyed is a public nuisance, which can be legally abated summarily • Not eminent domain but police power, since the street was merely used , and not taken, for public access • Loss of the home-owners’ privacy is inferior to municipality’s effort to ease traffic EPZA vs Dulay The Court here ruled that the assailed decree, which eliminates court’s discretion in determining just compensation, is unconstitutional and invalid.

Takings under Eminent Domain v. Takings under Social Justice Clause Michael Ocampo The provision of the 1987 Constitution Traditional Concept of Eminent Domain

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Eminent domain is usually taken to mean as “the ultimate right of the sovereign power to appropriate, not only public but the private property of all citizens within the territorial

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•

•

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sovereignty for public purpose.” (Charles River Bridge v. Warren Bridge). The 1987 Constitution expressly provides for this power but imposes certain limits: “Private property shall not be taken for public use without just compensation.” (Article 3, sec. 9) However, eminent domain is one of the 3 inherent powers of a state, to which it owes its very existence depends. Actually, it is a power that need not be granted by any constitution. “[T]he provisions now generally found in modern constitutions of civilized countries to the effect that private property shall not be taken for public use without compensation have their origin in the recognition of a necessity for restraining the sovereign and protecting the individual.” (Visayan Refining Co. v Camus)

“Taking” under Social Justice Clause

•

•

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“The State shall promote social justice in all phases of national development.” (1987 Constitution, Art. 2 Sec. 10). Bernas says that the framers of the constitution recognizing the urgency of promoting social justice included a whole chapter on the subject (i.e. Art. 13). 5 Hence “Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural iniquities by diffusing wealth and political power for the common good. To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.” (Art. XIII, Sec. 1) Specifically, the 1987

Bernas, J. The 1987 Constitution of the Republic of the Philippines: A Commentary. Manila: Rex, 2003.

charter calls on the state to undertake agrarian land reform (Art. XIII, Sec.4) and urban land reform and promote housing developments (Art XIII, Sec. 9).

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The Court in Sumulong v. Guerero, quoting J. Cruz’ textbook in political law, explained that the preceding provisions emphasize “the stewardship concept, under which property is supposed to be held by the individual only as a trustee for the people in general, who are the real owners.”

The role of courts and the approaches in social justice cases Re: interpreting social justice legislation “When the law is valid and clear, it simply must be applied; but when the law can be interpreted in more ways than one, an interpretation that favors the underprivileged must be favored.” (Federation of Free Farmers v. CA) For example, in the case of the Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, the Court sustained the use of “other things of value” in paying just compensation even though traditionally the mode of payment was in money. It admitted that a “degree of pragmatism” influenced its decision. It reasoned: “The Court is acutely anxious as the rest of our people to see the goal of agrarian reform achieved at last after the frustrations and deprivations of our peasant masses during all these disappointing decades. We are aware that the invalidating the said section will result in the nullification of the entire program, killing the farmer’s hopes even as they approach realization, and resurrecting the spectre of discontent and dissent in the countryside.”

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Re: WON there is arbitrariness in taking It is the courts that can determine whether property owners have been victims of prejudice and partiality in the expropriation process and thus nullify the act. (De Knecht v. Bautista). Re: Just compensation The judicial branch is also tasked with the final determination of just compensation. “Neither should the court adopt a handsoff policy just because the public use has been ordained as existing by decree or just compensation has been fixed.” (Manotok v. NHA) It is valid for an agency of executive branch to make an initial determination of just compensation so long as the landowner is not prevented from seeking recourse to the courts and presenting evidence showing that the valuation done by such a body was incorrect and unjust. (Assoc. of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform) Role of the Legislature Legislative fiat is one of 3 means to expropriate property In De Knecht v. Bautista, the court ruled that the expropriation proceeding against the property of petitioner was arbitrary and cannot receive judicial approval. There was another area where the expansion of EDSA can be undertaken, which will cost government less, affect lesser homeowners, etc. But in Republic vs. Knecht, the same property was ordered expropriated. Apparently, BP 340, which called for the taking of the property, was enacted after the 1st De Knecht case. De Knecht argued that there was already a law of the case, which should not be disturbed.

Court responded that while it is true that there was a law of the case, it is equally true that there is constitutional grant given to the State to take private property upon payment of just compensation. “Such expropriation proceedings may be undertaken by the [State] not only by voluntary negotiation with landowners but also by taking appropriate court action or by legislation.” (Rep. v. Knecht, JM Tuason & Co. Inc v. LTA) The prior court decision is no obstacle for the legislature to make its own assessment of the circumstances that prevailed after the decision as well as supervening events and reaching a conclusion as to the propriety of undertaking the appropriation of the De Knecht property. (Rep. v. Knecht) Legislative acts in the exercise of police power enjoy a presumption of validity J. Malcolm said that the “action of the elected representatives of the people cannot be lightly set aside. The councilors must in the very nature of things, be very familiar with the necessities of their particular municipalities and with all the facts and circumstances which surround the subject and the necessitate action. .. The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police power. Validity of the exercise of eminent domain power In Manotok v. NHA, SC said that to avoid constitutional infirmity “taking” must be α) for public use

β) there must be just compensation prior to taking χ) due process must be observed

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Due process6

•

Indeed it is a government prerogative, especially in view of needs for social justice, to exercise its eminent domain power. However, Government may not arbitrarily choose which private property to take. In other words, it is subject to the exacting standards of due process.

•

•

•

•

“A landowner is covered by the mantle of protection of due process affords...[I]t frowns on arbitrariness, [it is] the antithesis of any governmental act that smacks of whim or caprice, it negates state power to act in an oppressive manner.” (JM Tuason & Co. Inc v. LTA, De Knecht v. Bautista) “…[A]lthough due process does not always necessarily demand that a proceeding be had before a court of law, it still mandates some form of proceeding wherein notice and reasonable opportunity to be heard are given to the owner to protect his property rights”. (Manotok v. NHA) Hence, the PD 1669 and 1670, which were assailed in Manotok v. NHA were invalidated because the said laws prescribed that in making the assessment for just compensation the city assessor should consider the presence of blighted communities in the Tambunting and Sunog Apo estates, which depreciated the value of the properties. The laws also set a price ceiling for the estates, based on 1978 prices. Just compensation should be based on values in 1980 when the estates became subject of expropriation.” There are other bases that must be considered in determining just compensation which is the task of the courts.

Public character 6

For the rules of procedure in expropriation cases, see Rule 67 Rules of Court. This is part of procedural due process.

•

“[T]he very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of public character.” (City of Manila v. Chinese Community of Manila) Absolute necessity need not be established. It “is enough if the condemnor can show reasonable or practical necessity, which of course, varies with the time and the peculiar character of every case. (Manotok v. NHA) “The ‘public use’ requirement for a valid exercise of eminent domain is a flexible and evolving concept influenced by changing conditions. “ (Sumulong v. Guerrero) “There was a time when it was felt that a literal meaning of should be attached to such requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets and parks.” Now, land can be expropriated and subdivided into small lots for transfer or resale to individuals in government housing projects. “It is accurate to state that at present, whatever may be beneficial for the general welfare satisfies the requirement of public use.” (Sumulong, supra, quoting C.J. Enrique Fernando’s The Constitution of the Philippines.)

•

Examples of instances when expropriation was found to be for public use: - CARP (Association of Small Landowners, supra) - Socialized housing (Sumulong v. Guerrero)

•

But in Luz Farms v Sec. of DAR, the court ruled that the Constitution did not intend to include poultry and livestock farms under agrarian reform. The SC recognized that livestock production is an industry where land is not a primary resource but only an incidental input. In fact, 95% of the investments are in fixed assets other than land. In addition, unlike tenants in farmlands, workers in livestock farms receive minimum wages. Justice

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Sarmiento, concurring, said that to hold otherwise will violate the equal protection clause citing the substantial distinctions between lands devoted to farming and lands devoted to livestock. Classes dissimilarly situated should not be treated the same.

Police Power vis-à-vis Eminent Domain Police power •

Police power has been characterized as the most essential, insistent and least limitable of powers extending as it does “to all great public needs.” (Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of Manila, Inchong v. Hernandez). Negatively put, it is “that inherent power and plenary power of the State to prohibit all that is hurtful to the comfort, safety and welfare of the society.” (Rubi v. Provincial Board of Mindoro)

•

“[T}he mere fact that some individuals in the community may be deprived of their business or a particular mode of earning a living cannot prevent the exercise of police power. .. [P]ersons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in these occupations subject to the disadvantages which may result from the exercise of that power. ” (Ermita-Malate Hotel and Motel Operators Association, Inc. v. Mayor of Manila).

Just compensation

•

•

•

“It means a fair and full equivalent payment for the loss sustained, which is the measure of the indemnity, not whatever gain would accrue to the expropriating agency.” (JM Tuason & Co. Inc v. LTA, EPZA v. Dulay). It is not market value per se. The determination of just compensation and the rationale behind it is done “either at the time of the actual taking of the government or at the time of the judgment of the court, whichever came first.” (Manotok v. NHA, Rule 67 Sec. 4 Rules of Court) Form of payment. Indeed, the traditional medium of payment for just compensation is in money; however, land reform is not the traditional exercise of eminent domain where only property of relatively limited area is taken by the State for some public purpose. “What we deal hear is a revolutionary kind of expropriation.” The agrarian reform law covers the entire country. Government will have to spend billions of pesos to implement it and considering the financial limitations of the government, the legislature never had an illusion that there will be enough money to pay in cash. It is not oppressive to pay with shares of stocks, bonds, tax credits and other things of value equivalent to the amount of compensation. (Assoc. of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform)

Note that there licenses were involved in the Ermita-Malate case. The ordinance assailed was also considered as a valid exercise of police power was exercised. See the distinction between police power and eminent domain and the nature of licenses in next sections. •

The test of lawful purpose and reasonable means is also applicable. Hence, nn ordinance of Quezon City requiring memorial park operators to set aside at least 6% of their cemetery for charity burial of deceased paupers was declared an invalid exercise of police power and was found to be a case of taking of property without just compensation. The Court said there was no reasonable

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relation between the order and the promotion of public health, morals, good order or safety, or the general welfare of the people. (City Government of QC v Ericta) License, nature of Government can take away a license and increase the cost of license fees even to prohibitive levels, if public interest dictates so, without any constitutional violations. • “Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protected by the due process.” In the same case, the court said that a license is a mere privilege that can be withdrawn when public interests demand it. ‘’A license is merely a permit or privilege to do what is otherwise is unlawful, and is not a contract between the authority…granting it and the person to whom it is granted...[i]t does not create a vested right.” (Oposa v. Factoran). • Licenses for regulating non-useful occupation are incidental to the exercise of police power and the right to exact fees is may be implied from that power to regulate. In setting the fees, municipal corporations are given wider discretion in this class of licenses (than for licenses issued to regular business). Courts have generally upheld these because of the desirability of imposing restraints on individuals who engage in these unuseful enterprises. (Ermita-Malate Hotel Association v. City Mayor of Manila Police power v. Eminent domain The distinction between police power and eminent domain power logically precludes the application of the two at the same time (an exception is agrarian reform, see below). “Property condemned under police power is noxious or intended for a noxious purpose, such as a building on the verge of collapse, which should be

demolished for public safety, or obscene materials which should be destroyed in the interest of public morals. The confiscation of such property is not compensable, unlike the taking of property under the power of expropriation, which requires the payment of just compensation to the owner.” (Assoc. of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform) Agrarian reforms has features of police power and eminent domain Agrarian reform commingles the exercise of police power and eminent domain; therefore landowners covered by it must receive just compensation. To the extent that the agrarian reform law sets retention limits on landowners, the State is exercising police power. (Note that the redistribution of land was intended to quell civil unrests like insurgency) But where, to carry out such regulation, it becomes necessary to deprive such landowners of whatever land that they owned beyond the maximum area allowed, there is definitely a taking under eminent domain for which just compensation is necessary. (Assoc. of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform) Geduldig v. Aiello The exclusion of disability arising from normal pregnancy from the coverage of the insurance policy in California does not amount to invidious discrimination under the Equal Protection Clause. “The classification challenged in this case relates to the asserted underinclusiveness of the set of risks that the State has selected to insure.” 1. California has not selected to insure all risks of employment. “This Court has held that, consistently with the Equal Protection Clause, a State ‘may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind… The legislature may select one phase of one field and apply a remedy there, neglecting the others…” (Williamson v. Lee Optical

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Co.) “The Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all.” (Dandridge v. Williams) It is evident that a totally comprehensive program would be substantially more costly than the present program and would inevitably require state subsidy, a higher rate of employee contribution, a lower scale of benefits for those suffering insured disabilities, or some combination of these measures. There is nothing the Constitution, however, that requires the State to subordinate or compromise its legitimate interests solely to create a more comprehensive social insurance program than it already has. 2. The State has a legitimate interest in maintaining the selfsupporting nature of its insurance program. Similarly, it has an interest in distributing the available resources in such a way as to keep benefit payments at an adequate level for disabilities that are covered, rather than to cover all disabilities inadequately. Finally, California has a legitimate concerning in maintaining the contribution rate at a level that will not unduly burden participating employees. Mississippi University for Women, et al., v. Hogan The Court applied heightened equal protection analysis on the exclusion of men in the nursing school of MUW. “Because the challenged policy expressly discriminates among applicants on the basis of gender, it is subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. 1. “…the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an ‘exceedingly persuasive justification’ for the classification.

2. “The burden is met only by showing at least that the classification serves ‘important governmental objectives and the discriminatory means employed’ are ‘substantially related to the achievement of those objectives” State’s primary justification: compensate for discrimination against women through educational affirmative action. “In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened… a State can evoke a compensatory purpose to justify an otherwise discriminatory classification only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification. Mississippi made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities. “The policy is invalid also because it fails the second part of the equal protection test, for the State has made no showing that the gender based classification is substantially and directly related to its proposed compensatory objective. Micheal M. v. Superior Court California’s statutory rape law does not violate the Equal Protection Clause. Statute is sufficiently related to the State’s objectives. It discriminates on the basis of sex because only females may be victims, and only males may violate the section… the classification was ‘supported not by mere social convention but by the immutable physiological fact that it is the female exclusively who can become pregnant… the State has a compelling interest in preventing such pregnancies.”

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“… the court further held that the gender classification was readily justified as a means of identifying offender and victim. “When men and women are not in fact similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated. Personnel Administrator of Massachusetts v. Feeney Whether Massachusetts, in granting an absolute lifetime preference to veterans, has discriminated against women in violation of the Equal Protection Clause of the Fourteenth Amendment. “The equal protection guarantee… does not take from the States all power of classification. When a statute gender-neutral on its face is challenged on the ground that its effects upon women are disproportionably adverse, a twofold inquiry is appropriate: •

whether the statutory classification is indeed neutral in the sense that it is not gender based. (The distinction made is between veterans and non-veterans, not between men and women.)

•

whether the adverse effects reflects invidious based discrimination. (“…the State intended more than to prefer ‘veterans’… an intent to women from significant public jobs was not at this law.)

gendernothing exclude work in

Yick Wo v. Hopkins The effect of the execution of this ordinance in the manner indicated in the record would seem to be necessarily to close up

the many Chinese laundries now existing, or compel their owners to pull down their present buildings and reconstruct of brick or stone, or to drive them outside the city and county of San Francisco to the adjoining countries. The ordinance confer… a naked and arbitrary power to give or withhold consent, not only as to places but as to persons. …it divides the owners or occupiers into two classes…on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and the other those from whom that consent is withheld, at their mere will and pleasure. The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. Fragrante v. City and County of Honolulu Fragrante’s action was brought under the disparate treatment theory: the employer is normally alleged to have ‘treated a person less favorably than others because of the peron’s race, color, religion, sex, or national origin… The plaintiff has the initial burden in such a case of proving by a preponderance of the evidence a prima facie case of discrimination. Four factors: 1. the he has an identifiable national origin 2. that he applied and was qualified for a job for which the employer was seeking applicants 3. that he was rejected despite his qualifications 4. that after his rejection the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. “An adverse employment decision may be predicated upon an individual’s accent when – but only when – it interferes materially with job performance.”

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Boy Scouts of America v. Dale International School Alliance of Educators v. Quisumbing “Persons who work with substantially equal qualifications, skill, effort and responsibility, under similar conditions, should be paid similar salaries. This rule applies to the School, its “international character” notwithstanding. If the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employees is treated undfairly. “The State, therefore, has the right and duty to regulate the relations between labor and capital. These relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining agreements included, must yield to the common good. Board of Directors of Rotary International v. Rotary Club of Duarte “…constitutional protection to freedom of association in two distinct senses. 4. the Constitution protects against unjustified government interference with an individual’s choice to enter into and maintain certain intimate or private relationships. (relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection.) 5. the Court has upheld the freedom of individuals to associate for the purpose of engaging in protected speech or religious activities. (Evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes.)

The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints. First, associations do not have to associate for the “purpose” of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. Second, the First Amendment protects the Boy Scout’s method of expression. Third, the First Amendment simply does not require that every member of a group FREEDOM OF EXPRESSION agree on every issue in order for PROTECTED SPEECH the group’s policy to be “expressive PRIOR RESTRAINT association”. SUBSEQUENT PUNISHMENT SYMBOLIC SPEECH Goodridge v. Department Public Health

of

Civil marriage anchors an ordered society by encouraging stable relationships over transient ones…Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. “…history must yield to a more fully developed understanding of the invidious quality of the discrimination.”

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“For equal protection challenges, the rational basis test requires that ‘an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class.”

Speech, expression, and press include every form of expression, whether oral, written, tape, or disc recorded. It also includes movies as well as what is referred to as symbolic speech (e.g., wearing of armband as a symbol of protest). Peaceful picketing has also been included within the meaning of speech.7

Of the three rationales presented, none Providing a favorable setting for procreation “Our laws on civil marriage do not privilege procreative heterosexual intercourse between married people above every other from of adult intimacy and every other means of creating a family…Fertility is not a condition of marriage, nor is it grounds for divorce. Ensuring the optimal setting for child rearing “The ‘best interests of the child’ standard does not turn on a parent’s sexual orientation or marital status

Why is freedom of expression guaranteed by the Constitution? * It is essential for the search for truth; the power of thought can be tested by its acceptability in the competition of the market (marketplace idea).8 * It is needed for democracy to work properly; citizencritic has to be given the information required for him to be able to perform his civic duty.9 Prof. Roque referred to freedom of expression as the ultimate fiscalizer against the government, and stressed that it is essential to the search for solutions to our problems.

preserving scarce State and private financial resources Massachusetts marriage laws do not condition receipt of public and private financial benefits to married individuals on a demonstration of financial dependence on each other. The provision under the 1987 Constitution:

* On a personal level, it promotes individual selfrealization and self-determination.10

•

Section 4, Article III No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

7

Blackstone: “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid hit is to destroy the freedom of the press: but if

J. Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer 58 (2006 ed.) [hereinafter referred to as Reviewer]. 8 J. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 223 (2003 ed.) [hereinafter referred to as Commentary]. 9 Commentary, supra. 10 Supra.

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he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge or all controverted points in learning, religion, and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or making public, of bad sentiments destructive to the ends of society, is the crime which society corrects.”11

expression comes to this Court bearing a heavy presumption against its constitutional validity.”

1. Jurisprudence: Bantam Books, Inc. v Sullivan, Near v Minnesota, New York Times v United States.

3. Same; same; Leading cases. In Near v Minnesota, the (US) Court held the questioned statute, which authorized the state to obtain an injunction against the continued publication of a newspaper or magazine judicially declared to be a public nuisance, to be an infringement of the liberty of the press.

1. “If we cut through the mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter…and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is the essence of censorship.”12

Protected Speech; Prior Restraint •

•

The prohibition of prior restraint is the first prohibition of the free speech and press clause.

•

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

2. However, the ponente (Hughes (CJ)), in an obiter dictum, recognized that the prohibition of prior restraint is not absolute. For instance, “’(w)hen a nation is at war, many things that might be said

2. Prior restraint; Presumption of constitutional invalidity. “Any system of prior restraints of

11

Supra at 224.

12

238 U.S. 697 (1931).

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in time of peace are such a hindrance to its effort that their utterance will not be edured so long as men fight and that no court could regard them as protected by any constitutional right.’ No one would question but that government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.”13

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 even the issuance of an interim restraining order.”14

3. Stewart concurred with the decision because he could not determine whether the disclosure to the public would “surely result in direct, immediate, and irreparable damage” to the American nation or people.15

4. Although he did not deny the possibility of granting an injunction nor the probability that the publication of some of the documents would result in “substantial damage to public interests”, White concluded that the government “has not satisfied the very heavy burden which it must meet to warrant an injunction in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraint in circumstances such as these.”16 Also, he stated that the government’s suggestion (i.e., “grave and irreparable danger” as a sufficient standard for prior restraint) “would start the courts down a long and hazardous road and I am not willing to travel at least without congressional guidance and direction.”

4. Same; same; same. In New York Times v United States, the (US) Court refused to grant an injunction prayed for by the government against the continued publication by the New York Times and Washington Post of a study on US decisionmaking policy on Vietnam. The Court ruled that the government failed to meet the burden of showing justification for the enforcement of such a restraint; hence, the presumption against its constitutional validity was not overcome. The per curiam decision (i.e., a decision that requires no discussion, but justices may opt to attach an opinion) came with 6 concurring and 3 dissenting opinions. 1. Black and Douglas were absolutists. Basically, no law means no law. Period.

5. Marshall, in discussing Congress’ refusal to grant the executive branch the power government contended it had (in these cases), concluded that

2. Brennan conceded that there was a narrow class of exception: “only governmental allegation and 13

Supra at 716. Note: The first statement is from Schenck v United States, 249 U.S. 47.

14

Supra at 726-7. Supra at 730. 16 Supra. 15

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it is not the business of the Court “to take on itself the burden of enacting law, especially law that Congress has refused to pass.”17 Could Congress pass a law authorizing this prior restraint sought by the government? Marshall left this question open.18

and procedural safeguards for movie censorship. According to this case, “a noncriminal process which requires prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate dangers of a censorship system.”19

6. Dissenters Burger (CJ), Blackmunn, and Harlan

1. The burden of proving that the film is unprotected expression must rest on the censor. 2. Any restraint imposed in advance of a final judicial determination on the merits must be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. 3. The procedure must also assure a prompt judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.

were appalled by the excessive haste of the proceedings, which left the Court no opportunity to know what the facts are. The events of this case—from initial publication to this per curiam decision—lasted no more than three weeks.

5.

Same; Movies and censorship. Bernas states that “the preferential treatment in the matter of prior restraint that has been given to the press…has not been extended with equal vigor to motion pictures” and that US jurisprudence “treats motion pictures differently.”

4. Bernas notes that the doctrine in Freedman was not fully accepted by our Courts. In Iglesia ni Kristo v Court of Appeals, the Court (Philippines) said that “we are not ready to hold that it is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts.”20

1. Burstyn v Wilson (US, 1952) held that motion pictures come under the constitutional protection. 2. Times Film Corp. v Chicago (US, 1961) ruled that an ordinance requiring films to be submitted and viewed by a board of censors prior to public exhibition was not unconstitutional on its face.

Protected Speech; Subsequent

3. In Freedman v Maryland, the Court (US), in reversing the appellant’s conviction for exhibiting a motion picture without submitting it to the censors board, set down strict standards 17 18

Supra at 740. Commentary, supra at 229.

The prohibition of subsequent punishment is the second prohibition of the free speech and press clause. 19 20

380 U.S. 51 (1965). Reviewer, supra at 62.

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be a rational connection between the speech and the evil apprehended.

6. Subsequent punishment. The mere prohibition of government interference before words are spoken or published would be an inadequate protection of the freedom of expression if the government could punish without restraint after publication.21

10. Same; same; same; Sample case. In People v Perez, the Court affirmed the conviction of Perez for seditious speech, finding that his remark—“And the Filipinos like myself, must use bolos for cutting off Wood’s head for having recommended a bad thing for the Philippines.”—had a “seditious tendency” which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws.24

7. Same. If prior restraint were all that the constitutional guarantee prohibited and government could impose subsequent punishment without restraint, freedom of expression would be “a mockery and delusion.”22

8. Same; Standards for allowable subsequent

11. Same; same; The clear and present danger rule.

punishment. Since the freedom of expression ranks in the hierarchy of constitutional rights higher than property (Salonga v Pano, 134 SCRA 438), the norms for the regulation of expression place more stringent limits on state action. Jurisprudence has evolved three tests: (1) the dangerous tendency test, (2) the clear and present danger test, and (3) the balancing of interests* test.23

As formulated by Justice Holmes, “The question in every case whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”25 The test is a question of proximity and degree.

* Note: For balancing of interests, see Free Speech and Suffrage.

12. Same; same; same; A question of proximity and degree. In Dennis v United States, the Court affirmed the convictions of Dennis et al. for violating the Smith Act, which made it a crime for any person knowingly and willfully to advocate, organize or help to organize efforts aimed at, or conspire with others for the overthrow of the Government by force or violence. “Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to

9. Same; same; The dangerous tendency test. In the early stages of Philippine jurisprudence, the accepted rule was that speech may be curtailed or punished when it “creates a dangerous tendency which the State has the right to prevent.” All it requires, for speech to be punishable, is that there 21

Commentary, supra at 225. Reviewer, supra at 64. 23 Suipra at 64-5. 22

24 25

45 Phil. 599 (1923). Schenck v United States, 249 U.S. 47 (1919).

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be executed, the plans have been laid and the signal is awaited. If the Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for the Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease, needs no answer. For that is not the question. Certainly an attempt to overthrow the government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt…We must therefore reject the contention that success or probability of success is the criterion.”

According to the Court, the contents of the pamphlets they printed and disseminated are “not (attempts) to bring about a change of administration by candid discussion, for no matter what my have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential in the conduct of war.”26 “…the plain purpose of their propaganda was to excite, at the supreme crisis of the 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.”27

14. Same; same; Dangerous tendency test v Clear and present danger test. According to Bernas, it is difficult to speak of preference (which of these tests does the Supreme Court prefer to use) independently of the factual context. However, the pattern of decisions seem to indicate that: (1) in seditious speech cases, the Court appears to favor the dangerous tendency test; (2) in contempt of court cases, the dangerous tendency test appears to be preferred when the court is the Supreme Court, while the clear and present danger test appears to be preferred when the court involved is an inferior court. Bernas observes that, with the restoration of democracy, the clear and present danger test appears to be coming into favor again.28

13. Same; same; same; same. In Abrams v United States, the Court likewise affirmed the convictions of Abrams et al. for violating the Espionage Act, which made it unlawful for any person to utter, print, write, and publish disloyal, scurrilous, and abusive language about the form of Government of the US; (language) intended to bring the form of Government into contempt, scorn, contumely, and disrepute; (language) intended to incite, provoke, and encourage resistance to the US in the war (against Germany); and (language intended) to urge, incite, and advocate curtailment of production of things and products…necessary and essential to the prosecution of the war.

26

250 U.S. 622. Supra at 623. 28 Reviewer, supra at 68. 27

Protected Speech; “Speech Plus”: Symbolic

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15. Same; same; Eastern Broadcasting Corp. v Dans, Jr. Although the case became moot and academic, the court still issued guidelines for the guidance of the inferior courts and administrative tribunals exercising quasi-judicial functions. For freedom of expression, the salient guidelines are the following:

Symbolic speech is basically nonverbal form of expression.

16. Symbolic speech; “Speech” v “Non-speech”

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elements. According to U.S. v O’Brien, “when “speech” and “non-speech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on free speech. A governmental regulation is sufficiently justified if:

“(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule… “(4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.

6. it is within the constitutional power of the Government; 7. it furthers an important or substantial governmental interest unrelated to the suppression of free expression; and 8. the incidental restriction on alleged freedom is no greater than is essential to that interest.”30

“…the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. “(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account.

17. Same; Students’ wearing armbands as a sign of protest v School’s power to issue regulations. In Tinker v Des Moines School Dist., the Court held that:

“(6) The freedom to comment on public affairs is essential to the vitality of a representative democracy.

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“(6) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution.”29 29

137 SCRA 634-7.

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In wearing the armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth.

Reviewer, supra at 69, citing U.S. v O’Brien, 391 U.S. 367.

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First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.31

CONSTITUTION ART. III. BILL OF RIGHTS SECTION 4: NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF SPEECH, OF EXPRESSION, OR OF THE PRESS, OR OF THE RIGHT OF THE PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES.

The right to assembly and petition is another form of “speech plus”. Content- neutral, has to do with • Time – whether or not it was done or working or nonworking days • Manner- conduct of expression • Place – permit from Mayors for public places, unless it be freedom parks; on private property- need only consent of owner 2 Levels of Scrutiny: a. Strict Scrutiny – when speech is given to captive audience b. Less heightened – applied when audience is free to turn away uses “CLEAR AND PRESENT DANGER” standard Case 1: PRIMICIAS V FUGOSO

A. PROTECTED SPEECH Have intrinsic value on the inherent liberty of the individual 2 types: 1. Absolutely Protected 2. Qualified ART. 354 RPC: a. Private Communication b. Fair and True Report of News BORJAL V CA added: c. Fair Commentaries on Matters of Public Interest US V BUSTOS d. Bona fide communication

Just to remind you what it’s about: Primicias was not given a permit to hold a public meeting at Plaza Miranda Held: Mayor Fugoso only has the right to “regulate” – the discretion to determine or specify the streets where the parade or procession may pass or the meeting may be held; NOT to refuse or to grant the permit.

The rationale: citizen – critic with “DUTY” and “RIGHT” to express problems

But it is a settled principle growing out of the nature of wellordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society.

Subtopic 4: ASSEMBLY AND PETITION 31

393 U.S. 503.

What’s Important in this case relative to the topic: 1st: The right to 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 constitutions of democratic countries.

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2nd: The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power” which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people.

instance of disorderly conduct kasi magiging “delusion” na lang yung right to assemble & petition.

Tickler: Navarro applied for a permit to hold rally at Plaza Miranda on 2/26/1970 4pm-11pm. Mayor of Manila Villegas granted permit to hold rally at the Sunken Gardens, at earlier time. HELD: no denial of freedom of assembly, Mayor can regulate Time Place Manner.

Limitations – Criticism should be 1. Specific and therefore 2. Constructive, specifying particular objectionable actuations of the government; it must be reasoned or tempered, and not of contemptuous condemnation of the entire government set up. Criticism is within the range of liberty of speech unless the intention and effect be seditious. May be regulated (reiterated primicias) The activity should not impair the rights of others whose roots are as deep and as equally protected by iron-clad guarantees.

J. Villamor Concurring– right is neither unlimited nor absolute.

Case 3: PBM EMPLOYEES V PBM

J. Casto & J. Fernando Dissent – entitled to be accorded the utmost deference and respect. +the permit is parang prior restraint; walang standards to guide the licensing authority.

Tickler: PBM employees despite not being allowed by PBM proceeded to join a mass demonstration against Pasig Police abuses and were dismissed from work HELD: should be reinstated, ratio: primacy of human rights over property rights is recognized.

Case 2: NAVARRO V VILLEGAS

NOTES: The Right of Assembly and Petition for Redress of Grievances - Complement of the right to free speech - Inseparable with rights to freedom of speech and of the press - Cognate rights - An attribute of citizenship, right existed before the adoption of the Constitution, derived from laws whose authority is acknowledged by civilized men throughout the world. It is found where civilizations exist. Guide to Interpretation – we use the “broadest scope and widest latitude” cuz it is to be expected that more or less disorder will mark the public assembly of the people to protest against grievances – because feeling is always wrought to a high pitch. It shouldn’t be an excuse for the prosecution to seize upon every

Notes: The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of J. Holmes, to protect the ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to talk, but also to benefit the majority who refuse to listen. The rights of free expression, free assembly and petition, are not only civil rights, but also political rights, essential to man’s enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of a government through their suffrage but

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also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees. Freedom of assembly and expression occupy a preferred position as they are essential to the preservation and vitality of our civil and political institutions; and such “priority gives these liberties the sanctity and the sanction not permitting dubious intrusions.” J. Fernando and Barredo in Gonzales V Comelec; J. Douglas, Black and Goldberg in NY Times V Sullivan: Believes that the freedoms of speech and of the press as well as of peaceful assembly and of petition for redress of grievances are absolute when directed against public officials or “when exercised in relation to our right to choose the men and women by whom we shall be governed.” C.J. Vinzon is partial to the IMPROBABLE DANGER rule formulated by Chief Judge Learned Hand: “Whether the gravity of the evil, discounted by its improbability, justifies such invasion of free expression as is necessary to avoid the danger.” PBM employees were fighting for their very survival utilizing the only weapons afforded them by the Constitution – the untrammeled enjoyment of their basic human rights. To hold them in bad faith of the collective bargaining agreement (c.b.a.) would stretch the compass of the cba to be a potent means of inhibiting speech, inflicting a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and petition. Case 4: JBL REYES V BAGATSING

Tickler: retired J. JBL Reyes sought a permit from the City of Manila to hold a march and rally on Oct 26, 1983 2-5pm from Luneta to gates of US Embassy, and was denied by the Mayor due to Vienna Convention Ordinance and fear of subversives may infiltrate the ranks of the demonstrators. Held: no justifiable ground to deny permit because Bill of Rights will prevail over Vienna Ordinance should conflict exist (none proven because 500m not measured from gate to US Embassy proper) and fear of serious injury cannot alone justify suppression of free speech and assembly- only clear and present danger of substantive evil. NOTES: The Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly… Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings, unless there be a “clear and present danger of a substantive evil that the State has a right to prevent.” The sole justification for a limitation of the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both GRAVE and IMMINENT, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. J. Frankfurter: Bill of Rights was the child of the enlightenment. J. Roberts in Hague V CIO “Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and,

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time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” J. Teehankee Concurring Burden of “objective and convincing, not subjective or conjectural” proof of grave and imminent danger lies on the mayor. Case 5: MALABANAN V RAMENTO Tickler: Araneta University student council members w/ permit to hold meeting – held mtg longer than permit granted, in areas not covered by said permit; and were suspended for 1 year. HELD: dahil sa freedom of assembly na guaranteed ang students, the punishment should only be proportionate to the transgression, kaya Restraining Order (nakapagenroll at nakagraduate na sila), enough na yung 1 week suspension. NOTES: Court laid down the principles for the guidance of school authorities and students alike. The rights to peaceable assembly and free speech are guaranteed students of educational institutions. Necessarily, their exercise to discuss matters affecting their welfare or involving public interest is not to be subjected to previous restraint or subsequent punishment unless there be a showing of a CLEAR AND PRESENT danger to a SUBSTANTIVE EVIL that the state has a right to prevent. Additional Case 6: PEOPLE V BUSTOS Tickler: Bustos and several people sent complaint letters via counsel against Justice of Peace ROMAN PUNSALAN, who charged them with LIBEL.

Held: Bustos and the others were ACQUITTED, Ratio: the guarantees of free speech and a free press include the right to criticize judicial conduct. And these people did so in proper channels without undue publicity, believing they were right. NOTES: Right of Assembly – means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs Right to Petition- means that any person or group of persons can apply, without fear of penalty, to the appropriate branch or office of the government for a redress of grievances. Criticism does not authorize defamation. QUALIFIED PRIVILEGE (qualified protected speech) – bona fide upon any subject matter in which a party communicating has an interest or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would be slanderous and actionable. Privilege destroys the presumption of malice, the onus of proving malice then lies on the plaintiff. Brief Philippine History: Freedom of speech as cherished in democratic countries was unknown in the Philippine Islands before 1900. Jose Rizal in “Filipinas Despues de Cien Años” described “the reforms sine quibus non,” which the Filipinos insist upon, said: “The minister… must begin by declaring the press in the Philippines free…” The Filipino patriots in Spain, through “La Solidaridad” exposing the wants of the Filipino people demanded “liberty of the press, of cults, and of associations.”

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The Malolos Constitution, in its Bill of Rights, zealously guarded freedom of speech, and press and assembly and petition.. The right is a necessary consequence of our republican institution and complements the right of free speech. Quotable Quote: Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin- skinned with reference to comment upon his official acts. Subtopic 5: FREE SPEECH AND SUFFRAGE Case 1: GONZALES V COMELEC Tickler: Revised Election Code RA 4880 prohibits early nomination of candidates in political groups and limits the period of election campaigns or partisan activities. Held: lacked 1 vote to be declared unconstitutional, so the Court instead just rationalized that Congress was using police power to insure a free, orderly and honest election (Right of Suffrage) as they believe that the longer the time ng elections= more costs & more violence. NOTES: Reiterated in this case yung sa JBL Reyes V Bagatsing: Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings, unless there be a “clear and present danger of a substantive evil that the State has a right to prevent.”

The stress on freedom of association should be on its political significance. If such a right were non-existent, the likelihood of a one party government is more than a possibility. Authoritarianism may become unavoidable. The utmost scope should be afforded this freedom of association. Douglas: “… associational rights protected by the 1st amendment are much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion.” LIMITS: when “contrary to law” Which is defined still with clear & present danger rule. Criterion for permissible restriction: DANGEROUS TENDENCY test- if the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. Latter rule: CLEAR AND PRESENT DANGER rule- J. Holmes: whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of PROXIMITY and DEGREE. • means that the EVIL CONSEQUENCE must be extremely serious • the degree of IMMINENCE extremely high CLEAR- causal connection with the danger of substantive evil and the utterance questioned PRESENT – imminent, urgent, impending, requires an unusual quantum of proof. • As applied in the case, requirements:

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5. Not only the occasion for imposition but also 6. Limited in scope J. Castro sep. opinion BALANCING OF INTEREST test: It is ultimately the high function and duty of the SC to locate the point of accommodation and equilibrium and draw the line between permissible regulation and forbidden restraint. • Factors: a. value and importance of the freedom restricted b. Specific thrust of the restriction c. Value and importance of the public interest sought to be secured by legislation – nature and gravity of evil Congress seeks to prevent d. Whether restriction is reasonable and necessary e. Whether there is some other measure less restrictive of the protected freedom J. Barredo (concurring & dissenting) I think I’m citing dissent nya: • When the freedoms of speech, press and peaceful assembly and redress of grievances are being exercised in relation to suffrage or as a means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. • The 4 month period restriction is too short, and has proven to cause candidates to spend more; and effectively reduced the chances and practically killed the hopes of poor candidates. (how can a poor candidate cover more than 7,000 islands of our archipelago in 4 months?) Case 2: SANIDAD V COMELEC Tickler: Sec 19 of Comelec Resolution 2167 prohibits media men from using their media to campaign for or against the plebiscite in the Cordillera region

Held: UNCONSTITUTIONAL because 1. Comelec can only regulate franchises to candidates NOT media practitioners themselves 2. In a plebiscite there are NO candidates. NOTES: The people’s right to be informed would best be served by access to an unabridged discussion of the issues involved. The limitation is still a RESTRICTION OF HIS CHOICE OF FORUM where he may express his view, this form of regulation is tantamount to a restriction of petitioner’s freedom of expression for no justifiable reason. Case 3: NPC V COMELEC Tickler: Sec 11 o f RA 6466 prohibits the mass media owners from selling or giving free space or air time for campaign or other political purposes. Comelec will give equal space and air time to all candidates. HELD: valid because 1. Limited duration 2. Limited scope – do not limit commentaries, etc. 3. Reasonable and Valid Objective – equalize rich and poor candidates and 4. Pervasiveness of Radio and TV (pano print?) NOTES: The rights of free speech and free press are not the only important and relevant values even in the most democratic of polities, equality of opportunity to propel oneself into public office, without regard to the level of financial resources that one may have at one’s disposal is also an important value. Consti Art. IX. Section 4: The Commission (on elections) may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, concessions granted by the Government or any

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subdivision, agency, or instrumentality thereof, including any government owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure EQUAL OPPORTUNITY, TIME, AND SPACE, and the RIGHT TO REPLY, INCLUDING REASONABLE, EQUAL RATES THEREFOR, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Consti ART. II Section 26: 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. J. Davide, Jr. concurring The regulation was only in manner, time and place. J. Padilla concurring Valid exercise daw of police power J. Gutierrez dissent It keeps voters ignorant J. Cruz dissent Due to it amounts to prior restriction and censorship J. Paras dissent For him the restrictions have no valid reason

Case 4: ADIONG V COMELEC Since walang digest sa Deep and Profound Consti II Reviewer…

Digest: Senatorial Candidate Blo Umpar Adiong questions Comelec resolution Issue: WON Comelec may prohibit the posting of decals and stickers on “mobile” places? Held: NO. Ratio: 1st the prohibition infringes on the citizen’s fundamental right to free speech enshrined in the Constitution without any public interest substantial enough to warrant it. – amounts to censorship 2nd overbreadth; 3rd the objective: to equalize rich and poor candidates is not impaired by posting stickers to cars- necessary only is consent of the owner of the vehicle NOTES: The qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensible condition of nearly every other freedom. Mutuc V COMELEC: The preferred freedom of expression calls all the more the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. When faced with border line situations where freedom (of expression) to speak & freedom to know (to information) are invoked against (vs.) maintaining free and clean elections- the police, local officials and COMELEC should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State’s power to regulate are NOT ANTAGONISTIC. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. We examine the limits of regulation, J. Feliciano shows that regulation of election campaign activity may not pass the test of validity if:

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1. It is too general in its terms 2. Not limited in time and scope in its application 3. It if restricts one’s expression of belief in a candidate or one’s opinion of his or her qualifications, 4. If it cuts off the flow of media reporting 5. If the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed in his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. Subtopic 6: USE OF PRIVATE PROPERTY AS A FORUM FOR OTHERS’ SPEECH Case 1: PRUNEYARD SHOPPING CENTER V ROBINS Tickler: the mall prohibits “publicly expressive activity including the circulation of petitions, that’s not directly related to its commercial purposes.” Held: Pruneyard may not prohibit free speech and petition, pwede lang nila iregulate Time, Place, Manner. California SC was affirmed. NOTES: Private pero yung character imbued with public interest dahil: California SC: we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the shopping center there. Kasama ba sa’tin to? parang hindi naman e Case 2: WOOLEY V MAYNARD

Tickler: New Hampshire requires license plates to be embossed with state motto, which goes against principles of Maynard spouses (Jehovah’s Witnesses) so they covered up the motto. SC held: freedom to speak includes the right to refrain from speaking. Notes: The Constitutional rights of private property owners also have their origins in the First Amendment right of the property owner not to be forced by the state to use his property as a forum for the speech of others. UNPROTECTED SPEECH There are narrowly limited classes of speech—defamatory (e.g. libel), fighting words, and obscenity—whose prevention and punishment seem to be constitutionally sanctioned. The thinking is that these classes of speech are of slight social value and any benefit that may be derived from them is easily outweighed by social interests. (Chaplinsky vs New Hampshire) A. DEFAMATORY SPEECH The general rule for a speech to be considered libelous or defamatory is: Libel = falsity + actual malice (uttered in full knowledge of its falsity or with reckless disregard) Exemption: When the subject of the supposed libelous or defamatory material is a public officer. Defamatory words may be uttered against them and not be considered libelous. The reason is that 1) they asked for it (“they voluntarily thrust themselves into the public eye and therefore should not be thin-skinned”); 2) it’s a matter of public interest; and 3) public figures have the opportunity and resources to rebut whatever is said against them. (Policarpio vs Manila Times, New York Times vs Sullivan)

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Policarpio vs Manila Times Newspapers must enjoy a certain degree of discretion in determining the manner in which an 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. But, to enjoy immunity, a publication containing derogatory information must not only be true but also fair, and it must be made in good faith and without any comments or remarks. In the case at bar, the articles contained information derogatory to Policarpio and presented her in a worse predicament than in which she in fact was. The articles were not fair and true, and contained comment or remarks. Ruling: Not protected. Lopez vs CA According to Justice Learned Hand, an action for libel would lie arising from a publication of photograph if it yields a “grotesque, monstrous, and obscene impression” and that the person was “substantially enough ridiculed.” To defeat the actionability of libel, the publication must have been done in good faith and with reasonable care [and diligence to ascertain the truth]. Said the Court: “Newspapers should be given 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, thus they should not be held to account—to a point of suppression—for honest mistakes or imperfection in the choice of words.”

For liability in libel to arise then without offending press freedom, there is this test to meet: Whether the defamatory falsehood was made with actual malice—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. In the case at bar, the magazine—being weekly—was under no pressure of a daily deadline and therefore was not in haste to publish the picture of Fidel Cruz. It should have exercised reasonable care by cross-checking its facts. It failed to do so. Ruling: The magazine may have issued an erratum to acknowledge and correct its error but, libel is libel, thus it was still made to pay Cruz.

New York Times vs Sullivan The New York Times is protected under the freedom of speech in publishing paid advertisement, no matter if it contained erroneous claims and facts. Said publication was not “commercial” in the sense that it communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought a financial support on behalf of a movement. That the Times was paid for publishing the advertisement is as immaterial as the fact that newspapers and books are sold. Newspapers do not forfeit the protection they enjoy under speech freedom just because they publish paid advertisements. Otherwise, newspapers will be discouraged from carrying “editorial advertisements” and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities. On errors: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this truer than that of the press.” Erroneous statement is inevitable in free debate.

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Moreover, criticism of official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. Presence of clear and present danger of substantive evil must be proved. Actual Malice needs to be proved if a public official wants to recover damages for a defamatory falsehood relating to his official conduct. “Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.” Rosenbloom vs Metromedia When the offended party is a private individual, must he be required to prove only the fact that the publisher failed to exercise “reasonable care” in publishing defamatory falsehoods? The thinking is that, unlike a public figure, the private individual does not have access to media to counter the defamatory material. Also, the private individual has not assumed the risk of defamation by thrusting himself into the public arena. Modifying its ruling in New York Times vs Sullivan, the Court said: Voluntarily or not, we are all “public” men to some degree. The idea that certain “public figures” have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. Accordingly, individual reputation yields to other important social goals, such as freedom of the press and freedom of speech. Having said this, the Court held that “reasonable care” is an elusive standard that would place on the press or media the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name or picture.

Instead of reasonable care, the offended private individual must present a clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not. Ruling: Calculated falsehood falls outside the ambit of protected speech. DISSENTING: In order for particular defamation to come within the privilege [of protected speech], there must be a determination that the event was of legitimate public interest. Ayer Productions vs Capulong This is a case that calls for balancing of interests between freedom of expression and right of privacy—to film or not to film a documentary on EDSA I with Enrile’s participation. Freedom of speech and of expression includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. That the film is a commercial activity is of no issue. The right of privacy, meanwhile, is not absolute and cannot be invoked to resist publication and dissemination of matters of public interest. Privacy is protected only from unwarranted publicity, wrongful publicizing of the private affairs and activities of an individual which are outside the realm of public concern. Applying the “balancing of interests test” and “clear and present danger test” to the case at bar, the Court held that the subject matter of the documentary is the EDSA Revolution not Enrile’s life. The Revolution is without question a matter of public interest and Enrile’s participation must be included in it for it to be historically accurate. Moreover, the documentary had not been completed yet, so no basis to judge its content. But Ayer Production should see to it

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that the film be fairly truthful and historical in its presentation of events. There must be no knowing or reckless disregard of truth in depicting the participation of Enrile. Ruling: Protected speech. Soliven vs Makasiar Based on Sir Roque’s discussion: Beltran argued that what he wrote about Cory was a privileged communication and, therefore, should not be subject of litigation. For one, the subject is the President—the most powerful individual in the country. What are the odds the case will be decided based on its merits? For another, to allow a libel case would produce a “chilling effect” on press freedom. The Court did not rule on libel saying it’s not a trier of facts. Or that it has no basis to rule on the point of the supposed “chilling effect” of the libel case.

MVRS Publications vs Islamic Da’wah Council The alleged defamatory statement here is directed at all Muslims. Which gives rise to the question: May an individual Muslim or a group of Muslims file a case on behalf of all Muslims in the world? Said the Court: Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since one might as well defame all mankind. In the case at bar, for example, an individual Muslim has a reputation that is personal, separate and distinct from the community.

The Court applied the following doctrine: Defamation is an invasion of a relational interest since it involves the opinion which others in the community may have, or tend to have, of the offended party. The law of defamation protects the interest in reputation—the interest in acquiring, retaining, and enjoying one’s reputation as good as one’s character and conduct warrant. The mere fact that the plaintiff’s feelings and sensibilities have been offended is not enough to create a cause of action for defamation. Thus, words which are merely insulting are not actionable as libel or slander per se. Standard: Defamation requires that something be communicated to a third person that may affect the opinion others may have of the offended party. For an action on libel to prosper, therefore, the following should be present—1) injury to reputation, 2) published statement, and 3) statement defamatory to the complainant. In short, if no one is identified in a statement, there can be no libel because no one’s reputation has been injured. Ruling: Protected speech. Vitug vs Court of Appeals Vitug argued that her article was a non-defamatory expression of opinion. And that the privileged nature of said communication should be a ground for quashing the libel suit against her. The Court answered in the negative, saying that Vitug’s claims about her article—whether it is defamatory or nondefamatory, based on true facts or not, written with or without malice—need adequate proof and proper appreciation by the trial court and are issues that cannot be passed upon through mere arguments. Vitug’s article is “not absolute but merely qualifiedly privileged communication” and therefore actionable. In other words, it is not enough ground for a motion to quash. It is a matter

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of defense which must be proved after trial of the case on the merits. DISSENT: “Any other rule on defamation, in a national community like ours with many, diverse cultural, social, religious, and other groupings, is likely to produce an unwholesome chilling effect upon the constitutionally protected operations of the press and other instruments of information and education.” B. “FIGHTING WORDS,” OFFENSIVE WORDS There are two types of fighting words: 1) injury-specific or those which by their very utterance inflict injury; and 2) innate or those which tend to incite an immediate breach of the peace. (Chaplinsky vs New Hampshire) Fighting words are not protected because they are not an essential part of the exposition of ideas and they have negligible (if at all) social value. Chaplinsky vs New Hampshire For denouncing other religions as a racket, Chaplinsky—a Jehovah’s Witness—caused a public disturbance. When arrested, he called Marshal Bowering a “God-damned racketeer” and a “damned fascist.” He was charged with violating Chapter 378, Sec 2 of the Public Laws of New Hampshire—which prohibits use of offensive, derisive, or annoying words to any other person in public. The Court pointed out that there are certain well-defined and narrowly limited classes of speech which are not constitutionally protected. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting words.” Reason: Their very utterance inflicts injury or tends to incite an immediate breach of the peace. The word “offensive” is not to be defined in terms of what a particular addressee thinks. The TEST is what men of common

intelligence would understand would be words and expressions which by general consent are “fighting words” when said without a disarming smile. (Talagang kailangan disarming ang smile) Applied to the New Hampshire statute: “A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law.” Ruling: Not protected speech.

Cohen vs California In a municipal court, Cohen wore a jacket bearing the words “Fuck the Draft” in protest of the ongoing Vietnam War. For which he was charged with violating the California statute prohibiting acts disturbing the peace or quiet of any neighborhood… by offensive conduct. Court: “While F*CK is commonly employed in a personally provocative fashion, in this instance it was clearly not directed to the person of the hearer. No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.” (Let's do away with the asterisk and use the word FUCK). The mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. Outside the sanctuary of our homes, we are often captives of and subject to objectionable speech. Besides, those in the same room with Cohen could effectively avoid bombardment of their sensibilities simply by averting their eyes. Ruling: Protected speech.

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B. UNPROTECTED SPEECH

Prurient – lascivious desire or thought, lustful, shameful or morbid interest in nudity, sex or excretion, which goes beyond the limits of candor in description or representation of such matters

Subtopic 3: OBSCENITY

J. Douglas and J. Black dissent: Notable lang: by these standards, punishment is inflicted for THOUGHTS PROVOKED, not for overt acts nor antisocial conduct.

According to sir, very subjective talaga, no set standard. as applied in the Philippines, it depends on the sole determination of the Judge. “Judges become guardians of morality.”

Case 2: MILLER V CALIFORNIA

Ni-raise din ni Pau in class yun, na sa US kasi may Jury so ascertainable kahit papano yung “average person, applying contemporary community standards” Case 1: ROTH V US Tickler: Roth was convicted for keeping for sale obscene and indecent books, magazines and publishing ads of them. (mail order business) Held: Obsenity is not an utterance that is within the definition of protected speech and press. NOTES: Historically- obscenity has always been unprotected. There is a presumption that porn is utterly without redeeming social value. diniscuss na ang lumang test ay: Regina V Hicklin “effect of a single excerpt of the supposedly “obscene” material upon particularly susceptible persons at pinalitan ng bagong standard: Whether the AVERAGE person, applying contemporary community standards, would find that the dominant theme of the material TAKEN AS A WHOLE appeals to prurient interest

Tickler: Miller was convicted of mailing unsolicited sexually explicit material. Held: conviction affirmed. NOTES: Diniscuss din yung mas later sa Roth na decision, yung Memoirs V Mass na Obscenity test: a.) Dominant theme applies to prurient interest b.) Patently offensive because it affronts contemporary standards relating to the description or representation of sexual matters c.) Utterly without redeeming social value. And introduced a NEW OBSCENITY TEST: (eto yung inapply natin sa Pilipinas) pareho ng Roth, ireiterate na rin natin dito a.) Whether the AVERAGE person, applying contemporary community standards, would find that the dominant theme of the material TAKEN AS A WHOLE appeals to prurient interest Pero dinagdagan: b.) WON the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law. c.) WON the work lacks serious LITERARY, ARTISTIC, POLITICAL, or SCIENTIFIC value. • Note na pinalitan yung utterly without redeeming social value ng lacks serious…

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Case 3: GONZALES V KALAW KATIGBAK

Applied clear and present danger test.

Tickler: Kapit sa Patalim was classified as “For Adults Only” by the MTRCB and was suggested to have certain portions cut/ deleted. HELD: MTRCB do not have the power to exercise prior restraint.

Reviewed People V Kottinger (yung pics of indigenous people HELD: not obscene) test “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.” And another test “which shocks the ordinary and common sense of men as an indecency” “whether a picture is obscene or indecent must depend upon the circumstances of the case” and that ultimately the question is decided by the “judgment of the aggregate sense of the community reached by it.”

NOTES: The power of the MTRCB is limited to the classification of films. The TEST to determine whether a motion picture exceeds the bounds of permissible exercise of free speech and, therefore should be censored, is the CLEAR AND PRESENT danger test. Pero pag TV less liberal approach kasi “pervasive”, reaches every home where there is a set. Eto yung unang Philippine case na nag-apply pero ROTH standard lang I think: yung sa average person applying contemporary standards…

Case 4: PITA V CA Tickler: Anti- smut campaign of Manila Mayor Bagatsing seized without warrant publications believed to be obscene and burned them, including Leo Pita’s Pinoy Playboy. Held: Smut is not smut simply because one insists it is smut, it requires judicial determination. (kahit reversed and nanalo si Pita, wala namang affirmative action, sunog na e- moot and academic) NOTES: It is essential for the validity of… previous restraint or censorship that the … authority does not rely solely on his own appraisal of what the public welfare, peace or safety may require.

Applied MILLER V CALIFORNIA, NEW OBSCENITY TEST. Case 5: RENO V ACLU Tickler: Communications Decency Act seek to protect minors from obscenity on the internet. HELD: overbroad, vague, unconstitutional.

NOTES: Sexual expression which is indecent but not obscene is protected by the First Amendment. The internet is not an “invasive” medium because it requires a series of affirmative steps more deliberate and directed than merely turning a dial (tv or radio). There is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms.

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The Community Standard as applied to the internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message. The effect of CDA is such that when a site is blocked for being “indecent” or “patently offensive” the remaining content even if not indecent cannot be viewed anymore. Imposition of requirements (adult identification number or credit card) would bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material. It burdens communication among adults. The CDA is punitive, a criminal statute. The CDA is a contentbased blanket restriction on speech, and as such, cannot be properly analyzed as a form of time, place and manner regulation. “One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider V State

Case 6: ASHCROFT V ACLU Tickler: pinalitan na yung CDA ng Child Online Protection Act, 1. Nilimit yung scope into material displayed na lang on WWW hindi na kasama chat and email 2. Nilimit into commercial transactions 3. Nilimit yung pagclassify ng content as “harmful to minors” using Miller V California Test. So Upheld na ng S.C.

NOTES: The Court’s Jurisprudence teaches that it is the publisher’s responsibility to abide by that community’s standards.

The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional.