Atty. Randy E.

de Gala
Consti II Lecture, 2016
Professor

a) What do speech expression and Press include?

Answer:
Speech, expression and press include every form of expression whether oral,
or written, tape or disc recorded. It includes political speeches, self or artistic
expression commercial speeches( ads. Etc., ) Scientific Information. It also includes
movies as well as what is referred to as sympbolic speech such as the wearing of
armed bad as symbolic protest. Peaceful picketing has also been incuded within the
meaning of speech.
Note: The Doctrine of freedom of Speech was promoted primarily for the protection
of core speech, which communicates social, political and religious ideas.
Note:Commercial speech does not enjoy the same degree of protection)Central
Hudson Gas vs. Public Service Commission(447, U.s 557) ( Pharmaceutical vs.
Secretary of Health, G.r. No. 173034, October 9, 2007)(P. 283 Fr. Joaquin
Bernas,Consti, Commentary)
FREEDOM OF EXPRESSION(Sec, 4 Art 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
The chief purpose of the guaranty is to prevent previous restraints of speech,
expression or of the press.(prior restraint)However the prohibition of prior restraint
would be inadequate protection of the freedom of expression if the government could
punish without restraint after publication or expression(Subsequent punishment)
The mere exception from previous restraint cannot be all that is secured by
the constitutional provisions, in as much as of words to be uttered orally there can be
no previous censorship, and the liberty of the press might be rendered a mockery and
a delusion, and the phrase itself , while every man was at liberty to publish
what he pleased, the public authorities might nevertheless punish him for
harmless publications(cooley, Constituional Limitations 421(1808)pp233234 Bernas,Consti Commentary)
Thus.sec.
4
established
two prohibitions: (1)Freedom from prior
restraint; and (2) Freedom from subsequent punishment.
Freedom of
expression also means limitations of the government to impose subsequent
punishment.
Querry: Does it mean that these liberties are
limitations which may be imposed by the government?
Discussion:

absolutely free from any

The liberties of the press is indeed essential to the nature of a free state:
This consists of
-Laying no previous restraints upon publication but not
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 this is
to destroy the freedom of the press: But if he publishes what is improper,
mischievous, or illegal, he must take the consequence of his own temerity .Thus, the
will of the individual is still left free: the abuse only of that free will is the
object of legal punishment. Liberty of private sentiment is still left free; the
dissemination of bad sentiments destructive to the ends of society is the
crime which the society corrects.
Querry : What are then the system of which could be imposed as prior
restraint of the freedom of expression:
Discussion: These are: System of sensorhip, closures, court injunctions and
system of issuance of licenses and permits. However all these system come to the
court bearing a heavy presumption against its constitutional validity. The government
thus carries a heavy burden of showing justification for the enforcement of such
restraint.(New York times vs. U.S,403 US. 713(1971)p.235, Bernas Consti,
Commentary)
Note:

the cases of Iglesia ni Kristo vs Ca, 1996;GMA network vs. MTRCB

2007; Chavez vs Gonzales, G.RNo. 168338, February 15,2008; Soriano vs
Laguardia, 2010

b) What is the first prohibition of the free speech and press clause? Is that prohibition
absolute? (explain thoroughly such prohibition)
Answer: The first prohibition of the constitutional provision is a prohibition of prior
restraint.
Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Its most blatant form is
a system of licensing administered by an executive officer.
The doctrine which prohibits prior restraint arose as a reaction to sixteenth and
seventeenth century attempts to control the press by requiring licenses and permits
to publish.
Movie censorship although not placed on the same level as press censorship, also
belongs to this type of Prior restraint.
Another form is known as judicial restraint which takes form of an injunction against
publication.(Murdock vs. Pennsylvenia, 319 U.S, 105(1943) American Bible
Society vs. City of Manila, 101 Phil. 386(1957, P 233, Bernas S.J Consti.
Commentary)
The prohibition of prior restraint is not absolute. Although the system of prior
restraint comes to court bearing a heavy presumption of unconstitutionality ( the
burden of proof is on the government to prove its constitutionality or that it is
extremely necessary in order to overcome the presumption), There are exceptions to
the rule:
a) When a nation is at war. Many things that might be said in time of
peace are such hindrance to its effort that their utterances will not ne
endured 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 actual obstruction to its
recruiting service or the publication of the sailing dates of transports or
number of lacations of troops. On Similar grounds, the primary
requirements of may be enforced against obscene publications.The
security of the community life may be protected against incitements to
acts of violence and overthrow by force of orderly government.
(Near vs. Minnesota, 283 U.S. 697(1931)(p. 234 Bernas, Consti
Commentary)
b) When the Comelec exercise its power to regulate mass media for election
purposes(sec 9, par C sec 4) National Press Club vs Comelec, 201
Scra 1)

c) What is the second basic prohibition of the free speech and press clause? What does
it include?
Answer:
The free speech and press clause prohibits system of subsequent punishment
which have the same effect of unduly curtailing expression. For indeed, if prior
restraint were all that the constitutional guarantee prohibited and government could
imposed subsequent punishment without restraint , freedom of expression would be
a mockery and a delusion.
System of subsequent punishment includes; Criminal prosecution for sedition, libel,
obscenity, citation for contempt and suit for damages.
The prohibition of subsequent punishment clause is basically a limitation of
governmental power to impose rule and regulations curtailing freedom of speech and
press.

That is why it is part of the freedom of expression that there shall be no state
regulation in the form of subsequent punishment unless it permissible if it passes the
standards that allowed this second prohibition.

d) What are the standards/tests for the allowance of the second prohibition of the free
speech and press clause? Among them, which are more favored?(Define and explain
each test?
Answer:
Since freedom of expression ranks in the hierarchy of constitutional rights higher
than property, the norms and 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; (3) The balancing of interest test. Of these , the
second and third are in favor.)
The Dangerous Tendency rule was the test used in the early stage 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 that it
requires is that there be a rational connection between the speech and the evil
apprehended. (pp vs perez, 45 phil 599, 1923, PP vs Feleo 57 phil 451, 1932; PP
vs evengelista , 57 phil 354, 1932; Espuelas vs People, 90 phil 524,
1951;Espiritu vs lim 202 Scra 251, 1991)pp 252- 257,Bernas Const
Commentary)
The clear and present danger Rule which has reference to whether the words
used are used 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 the question of proximity
and degree.
In applying this test the court must ask whether the gravity of the evil, discounted by
its improbability, justified such invasion of free speech as is necessary to avoid the
danger.(Gonzales vs Comelec, Zaldivar vs Gonzales, Iglesia Ni Cristo vs CA,
259 Scra 529;Viva productions vs CA and Hubert Webb, 1997)
The balancing of interest rule: When particular conduct is regulated in the
interest of public order and the regulation results in an indirect , conditional, partial
abridgment of speech, the duty of the courts is to determine which of the two
conflicting interest demands greater protection under the particular circumstances
presented.(Ayer vs Capulong 160 scra 685)
NOTE: It should be noted that these tests apply not only to freedom of speech
and press, but also to other preferred freedoms: Freedom of association, right to
assembly and petition, freedom of religion.
NOTE: Distinction between content- Neutal Regulation and Content Based
Restriction.
Content Neutral Regulation- merely concerned with the incidents of the speech,
or one that merely controls the time , place or manner, and under well defined standards;
Content based restrictions- the restriction is based on the subject matter of the
utterance or speech.Generally treated as more suspect than neutral laws because judicial
concern with discrimination in the regulation of expression. (Newsounds Broadcasting
Vs. Dy, Gr. No. 170270, April 2, 2009)
e) IF the provision of the law is a content neutral restriction, what is the test being
applied? What are the elements of such test?
Answer: if the provision of the law is content neutral restriction the O Brian Test
( U.S vs O brien, 391 U.S 365) applies. The Us Supreme Court held that a
government regulation is valid if the following circumstances are present, to wit:
(1) It is within the constitutional power of the government;
(2) It furthers an important or substantial government interest;
(3) Government interest is unrelated to the suppression of free expression;
(4) The incidental restriction on the freedom is no greater than is essential to

the furtherance of the interest. (SWS vs. Comelec, G.r No. 147571,
2001)
f)

What is the meaning of commercial speech? In order for the government to curtail
commercial speech what must be shown?
Answer:
Commercial speech simply means communication whose sole purpose is to propose
commercial transaction. Advertisement of goods or of services is an example.
To enjoy protection, commercial speech must not be false or misleading and should
not propose an illegal transaction. However, even truthful and lawful commercial speech
may be regulated if (1) Government has a substantial interest; (2) The regulation directly
advances that interests; and (3) it is not more extensive than necessary to protect that
interest.(Central Hudson Gas vs. Public Service Commission 447 U.S 557, 1980;
Pharmaceutical vs Secretary of Health, G.r No. 173034, October 9, 2007; pp281283-Bernas, Consti Commenmtary)