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Section 4: Freedom of Expression

Section 4. No law shall be passed 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.

 Q: What do “speech, expression and press” include?


o A: These include (1) written or spoken words, recorded or not; (2) symbolic
speech such as wearing armbands as symbol of protest; and (3) movies. (UP
Political Law Reviewer 2013)
 Q: What is the scope of protected freedoms?
o A: Any and all modes of protection are embraced in the guaranty. It is reinforced
by Section 18(1), Article III.
 Q: What are the elements of freedom of expression?
o A: (1) Freedom from prior restraint or censorship; and (2) freedom from
subsequent punishment. (UP Political Law Reviewer 2013)
 Q: What is the concept of prior restraint or censorship?
o A: Prior restraint means official governmental restrictions on the press or other
forms of expression in advance of actual publication or dissemination. (Bernas
Commentary, 2009)
o Prior restraints of expression bear a heavy presumption against its
constitutionality, giving the government a heavy burden to show justification for
the imposition of such restraint. (New York v. United States, 1971)
 Q: COMELEC issued a resolution prohibiting the posting of decals and stickers in mobile
units like cars and other moving vehicles. Is the resolution constitutional?
o A: No. The prohibition unduly infringes on the citizen's fundamental right of free
speech enshrined in the Constitution. There is no public interest substantial
enough to warrant the kind of restriction involved in this case. All of the
protections expressed in the Bill of Rights are important, but we have accorded to
free speech the status of a preferred freedom. (Adiong v. COMELEC, 1992)
 Q: Newsounds Broadcasting Network, Inc., operating a radio station, filed a petition for
mandamus for the issuance of mayor’s permit after the city mayor of Cauayan refused to
issue them one which ultimately led to the closure of the network. Is there prior restraint
against the network?
o A: Yes. Respondents closure of petitioner’s radio stations is clearly tainted with
ill motives. Petitioners have been aggressive in exposing the widespread election
irregularities in Isabela that appear to have favored respondent Dy and his
political dynasty. Such statement manifests and confirms that respondent’s denial
of the renewal applications on the ground that property is commercial and merely
a pretext, and their real agenda is to remove petitioners from Cauayan City and
suppress the latter’s voice. This is a blatant violation of constitutional right to
press freedom. (Newsounds Broadcasting v. Dy, 2009)
 Q: A diocese put up, within the compound of the church, a tarpaulin expressing their
opposition to the RH Bill and enumerated the senatorial candidates who were pro and anti
to the said bill. The lists were named Team Patay and Team Buhay respectively. The
COMELEC thus, ordered the removal of said tarpaulin alleging that the tarpaulin was an
election propaganda. Is order of removal constitutional?
o A: No. COMELEC does not have the authority to regulate the enjoyment of the
preferred right to freedom of expression exercised by a non-candidate. while the
tarpaulin may influence the success or failure of the named candidates and
political parties, this does not necessarily mean it is election propaganda. The
tarpaulin was not paid for or posted “in return for consideration” by any
candidate, political party, or party-list group. (The Diocese of Bacolod v.
COMELEC, 2015)
 Q: Several employees of Davao City Water District were charged administratively after
wearing grievance t-shirts against the BOD in their fun run. The respondents contend that
they were only expressing their opinions and thus the charges must be dismissed. Are
they correct?
o A: Yes. As defined in Section 5 of CSC Resolution No. 02-1316 which serves to
regulate the political rights of those in the government service, the concerted
activity or mass action proscribed must be coupled with the "intent of effecting
work stoppage or service disruption in order to realize their demands of force
concession. Not all collective activity or mass undertaking of government
employees is prohibited. Otherwise, we would be totally depriving our brothers
and sisters in the government service of their constitutional right to freedom of
expression. (Davao City Water District v. Aranjuez, 2015)
 Q: Is freedom from prior restraint absolute?
o A: No. There need not be total suppression; even restriction of circulation
constitutes censorship (Grosjean v. American Press Co., 297 U.S. 233)
o Near v. Minnesota, 283 US 697, enumerated the exemptions to the constitutional
prohibition: (a) When a nation is at war, many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be endured so
long as men fight and that no court could regard them as protected by any
constitutional right; (b) actual obstruction to the government’s recruiting service
or the publication of the sailing dates of transports or the number and location of
troops; (c) obscene publications; (d) incitements to acts of violence and the
overthrow by force of orderly government.
 Q: What are the tests for valid government interference to freedom of expression?
o A: (1) Clear and present danger test - This rule requires that “the danger created
must not only be clear and present but also traceable to the ideas expressed”.
(Gonzales v. COMELEC, 1969)
o (2) Dangerous tendency test - If the words uttered create a dangerous tendency of
an evil which the State has the right to prevent, then such words are punishable
(Cabansag v. Fernandez, 1957). It is sufficient if the natural tendency and the
probable effect of the utterance were to bring about the substantive evil that the
legislative body seeks to prevent (People v. Perez, 1956).
o (3) Balancing of interest test - When a particular conduct is regulated in the
interest of public order, and the regulation results in an indirect, conditional and
partial abridgement of speech, the duty of the courts is to determine which of the
two conflicting interests demands greater protection (American Communications
Assoc. v. Douds, 339 US 282). The test is applied when two legitimate values not
involving national security crimes compete. (Gonzales v. COMELEC, 1969)
 Q: What is Heckler’s veto?
o A: An attempt to limit unpopular speech. For example, an unpopular group wants
to hold a rally and asks for a permit. The government is not allowed to refuse the
permit based upon the beliefs of the applicants. But the government can deny the
permit, reasoning that it is not because the government disapproves of the group's
message, it is just afraid that so many people will be outraged that there might be
violent protests.
o Under the Free Speech Clause of Sec. 4 Art. III, the government may not silence
speech based on the reaction (or anticipated reaction) of a hostile audience,
unless there is a "clear and present danger" of grave and imminent harm, which
is not easy to prove.
 Q: R.A. 6646 was enacted which prohibits any newspaper, radio, any person making the
use of media to sell or give free of charge of space or time for political purpose except
COMELEC. Representatives of mass media assails its constitutionality on the ground that
it amounts to censorship because it singles out for suppression only publications of a
particular content and it abridges freedom of speech of candidates. Are their contentions
correct?
o A: No. The COMELEC has been expressly authorized by the Constitution to
supervise or regulate the enjoyment or utilization of the franchises or permits for
the operation of media of communication and information as stated in Section 4,
Article IX-C. The fundamental purpose of such “supervision or regulation” is the
ensuring of “equal opportunity, time, and space, and the right to reply,’ as well as
uniform and reasonable rates of charges for the use of such media facilities, in
connection with “public information campaigns and forums among candidates.”
The provision of the Bill of Rights enshrining the freedom of speech, expression,
and of the press, has to be taken in conjunction with Section 4, Article IX-C which
may be seen to be a special provision applicable during a specific limited period,
i.e. during election period. The rights of free speech and free press are not
unlimited rights for they are not the only important and relevant values even in
the most democratic of polities. (National Press Club v. COMELEC, 1992)
 Q: A provision of Comelec Resolution No. 2167 which prohibits radio commentators or
newspaper columnists from commenting on the issues involved in a scheduled plebiscite
was assailed due to alleged infringement of freedom of expression. Decide
o A: The provision is unconstitutional. Neither Article IX-C of the Constitution nor
RA 6646 can be construed to mean that the Comelec has also been granted the
right to supervise and regulate the exercise by media practitioners themselves of
their right to expression during plebiscite periods. Media practitioners exercising
their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates involved in a
plebiscite. Therefore, Section 19 of Comelec Resolution 2167 has no statutory
basis. (Sanidad v. COMELEC, 1990)
 Q: COMELEC issued a resolution approving a restraining order against ABS-CBN from
conducting an exit survey of the votes cast for President and VP and broadcast the results
immediately. Is the resolution valid?
o A: No. The Constitution mandates that no law shall be passed abridging freedom
of speech and press. These freedoms basically consist of the liberty to discuss
publicly and truthfully any matter of public interest without prior restraint. The
court adheres to the clear and present danger rule which is a question on the
proximity and degree of the utterance will result to the danger or evil sought to be
avoided. This is a heavy burden because the court is always on the side of
freedom of expression. To justify restriction, the promotion of substantial govt
interest must be clearly shown. And even when its purpose is legitimate and
substantial, the means employed should not be broad as to stifle personal liberties
when the end can be more narrowly achieved. (ABS-CBN v. COMELEC, 2000)
 Q: What does the Supreme Court say about movie censorship?
o A: In an old U.S. case, it was observed that movies, compared to other media of
expression, have a greater capacity for evil and must, therefore, be subjected to a
greater degree of regulation. But the power of the Board of Review for Motion
Pictures and Television (BRMPT) [now the Movie and Television Review and
Classification Board (MTRCB)] can be exercised only for purposes of
“classification”, not censorship. (Gonzales v. Kalaw-Katigbak, 137 SCRA 717)
 Q: When is censorship allowed?
o A: Censorship is allowable only under the clearest proof of a clear and present
danger of a substantive evil to public safety, morals, health or any other
legitimate public interest: (1) There should be no doubt what is feared may be
traced to the expression complained of. (2) Also, there must be reasonable
apprehension about its imminence. It does not suffice that the danger is only
probable. [Gonzales v. Kalaw-Katigbak (1985)]
 Q: What is the enabling law for movie and television review?
o A: P.D. 1986 gave MTRCB the power to screen, review and examine all television
programs.
o By the clear terms of the law, the Board has the power to “approve, delete, or
prohibit” the exhibition and/or television broadcasts of television programs. (UP
Political Law Reviewer 2013)
 Q: BRMPT (now MTRCB) classified one of Iglesia ni Cristo’s program as “X” or not for
public viewing on the ground that they offend and constitute an attack against other
religions which is expressly prohibited by law. INC contended that the term television
program should not include religious programs like its program Ang Iglesia ni Cristo. It
will contravene Section 5, Article III of the Constitution which guarantees that no law
shall be made respecting an establishment of religion or prohibiting the free exercise
thereof. Decide.
o A: The law gives the Board the power to screen, review and examine ALL
“television programs” whether religious, public affairs, news documentary, etc.
(Ubilex non distinguit nec distinguere de bemos-when the law does not make any
exception, courts may not except something therefrom). [Iglesia ni Cristo v. CA
(1996)]
 Q: Senator Enrile files a case against private petitioners for the production and filming of
the projected motion picture “The Four Day Revolution”, which relates to the non-bloody
change of government that took place at EDSA, for its unlawful intrusion upon the
former’s right to privacy. The RTC thus ordered for the desistance of the movie
production and making of any reference to plaintiff or his family. The production
company now appeals for the reversal of said desistance in the grounds of violation of
freedom of speech. Decide
o A: The order of desistance must be set aside for it violates the freedom of speech
enshrined in Article III, Section 4 of the Constitution. Freedom of speech includes
the freedom to film and produce motion pictures and to exhibit such motion
pictures in theaters or to diffuse them through television. Since the projected
motion picture was as yet uncompleted and hence not exhibited to any audience,
neither private respondent nor the respondent trial Judge knew what the
completed film would precisely look like. There was, in other words, no "clear
and present danger" of any violation of any right to privacy that private
respondent could lawfully assert.
o Limited intrusion into a person’s privacy is permissible when that person is a
public figure and the information sought to be published is of a public character.
What is protected is the right to be free from unwarranted publicity, from the
wrongful publicizing of the private affairs of an individual which are outside the
realm of public concern. (Ayer Productions v. Capulong, 1988)
 Q: Philippine Women’s University filed a complaint to the MTRCB against ABS-CBN
after it aired in one of its show’s episode some PWU students using prostitution to
finance their studies. ABS-CBN contended that MTRCB has no power to impose any
form of prior restraint upon them, and that the show is a public affairs program and a
news documentary and falls in the category of newsreel, the airing of which is protected
by the constitutional provision on freedom of expression and of the press. Is their
contention correct?
o A: No. The MTRCB defined newsreel as straight news reporting, as distinguished
from news analyses, commentaries and opinions. The show in question falls in the
latter and thus within the MTRCB’s review power. (MTRCB v. ABS-CBN, 2005)
 Q: What is the concept of subsequent punishment?
o A: Freedom of speech includes freedom after speech. Without this assurance, the
citizen would hesitate to speak for fear he might be provoking the vengeance of
the officials he has criticized. If criticism is not to be conditioned on the
government’s consent, then neither should it be subject to the government’s
subsequent chastisement. (UP Political Law Reviewer 2013)
 Q: What are the exceptions on the freedom from subsequent punishment?
o A: (1) Libel. Every defamatory imputation is presumed to be malicious. [Alonzo v.
CA (1995)]
o (2) Obscenity. Obscenity is an issue proper for judicial determination and should
be treated on a case-to-case basis, and on the judge’s sound discretion
[Fernando v. Court of Appeals, G.R. No. 159751, December 6, 2006].
o (3) Contempt for criticism/publications tending to impede, obstruct, embarrass or
influence the courts in administering justice in a pending suit or proceeding (sub
judice) [People v. Alarcon (1939)]
o (4) Imputation of irregularities in the judiciary must strike a balance between the
right to free press and the reputation of judges. A reporter is prohibited from
recklessly disregarding a private reputation without any bona fide effort to
ascertain the truth thereof [In Re: Emil Jurado (1995)]
o (5) Right of students to free speech in school premises must not infringe on the
school’s right to discipline its students [Miriam College Foundation v. CA
(2000)]
 Q: What is the actual malice standard?
o A: This standard is enshrined in New York Times v. Sullivan (1964) which states
that even if the defamatory statement is false, no liability can attach if it relates to
official conduct, unless the public official concerned proves that the statement
was made with actual malice— that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.
 Q: Do pictures showing native inhabitants without upper clothing considered obscene?
o A: No. Pictures depicting native inhabitants in their native dresses as they appear
and live in their native homelands are not obscene or indecent. The pictures in
question merely depict persons as they actually live, without attempted
presentation of persons in unusual postures or dress. [People v. Kottinger (1923)]
 Q: On the program of Dating Daan, Ely Soriano made crude remarks like “lihitimong
anak ng demonyo, sinungaling, etc.” Thus, MTRCB preventively suspended him and his
show. Is this a violation on freedom of expression?
o A: No. SC held that the State has a compelling interest to protect the minds of the
children who are exposed to such materials. [Soriano v. Laguardia (2009)]
 Q: Distinguish “content-based restrictions” on free speech from “content-neutral
restrictions”.
o A: Content-based restrictions are imposed because of the content of the speech
and are, therefore, subject to the clear-and-present danger test. These restrictions
are censorial and therefore they bear a heavy presumption of constitutional
invalidity. In addition, they will be tested for possible overbreadth and vagueness.
o Content-neutral restrictions, on the other hand, are regulations on the incidents
of speech— time, place and manner. Like Sec. 11(b) of R.A. No. 6646, which
prohibits the sale or donation of print space and air time to political candidates
during the campaign period, are not concerned with the content of the speech and
is only effective during the election period. (Political Law Reviewer by Atty Edwin
Sandoval)
 Q: How is a content-neutral regulation justified?
o A: It is justified when (1) it is within the constitutional power of government; (2) it
furthers an important or substantial government interest; (3) government interest
is unrelated to the suppression of free expression; and (4) the incident restriction
on the alleged freedom of speech and expression is no greater than is essential to
the furtherance of that interest. (US v. O’brien 391 US 367)
 Q: As a consequence of the public release of copies of the “Hello Garci” compact disc
audiotapes involving a wiretapped mobile phone conversation between then-President
Gloria Arroyo and Comelec Commissioner Virgilio Garcillano, DOJ Secretary Gonzales
warned reporters that those who had copies of the CD and those broadcasting or
publishing its contents could be held liable under the Anti-Wiretapping Act. Meanwhile,
NTC warned TV and radio stations that their broadcast/airing of such false information
and/or willful misrepresentation shall be a just cause for the suspension, revocation
and/or cancellation of the licenses or authorizations issued to the said media
establishments. Now, the press statements of DOJ and NTC is being assailed to constitute
a form of content-based prior restraint that has transgressed the Constitution. Decide.
o A: It is not decisive that the press statements made by respondents were not
reduced in or followed up with formal orders or circulars. It is sufficient that the
press statements were made by respondents while in the exercise of their official
functions. Any act done, such as a speech uttered, for and on behalf of the
government in an official capacity is covered by the rule on prior restraint.
o A purported violation of law such as the Anti-Wiretapping Law will not justify
straitjacketing the exercise of freedom of speech and of the press. A governmental
action that restricts freedom of speech or of the press based on content is given
the strictest scrutiny, with the government having the burden of overcoming the
presumed unconstitutionality by the clear and present danger rule. (Chavez vs.
Gonzales, 2008)
 Q: What is the concept facial challenge?
o A: Facial challenge is the exception to the locus standi requisite in assailing a
statute. It can only be applied to statutes involving free speech. The theory is that
“when statutes regulate speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity.”
o The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others
may be deterred, and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes. (UP Political Law Reviewer 2013)
o This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech. [Concurring Opinion of Justice Mendoza
in Estrada v. Sandiganbayan (2001)]
o Note: Imbong v. Ochoa: While the Court has withheld the application of facial
challenges to strictly penal statues, it has expanded its scope to cover statutes not
only regulating free speech, but also those involving religious freedom, and other
fundamental rights. The underlying reason for this modification is simple. For
unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
 Q: What is overbreadth doctrine?
o A: Overbreadth doctrine states that a governmental purpose may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms. (UP Political Law Reviewer 2013)
 Q: What is commercial speech?
o A: Commercial speech is unprotected speech. Commercial advertising in the U.S.
has been accorded First Amendment protection but not in the same level of
protection given to political speech. One case set down the requirements for
protection of commercial speech: (1) speech must not be false, misleading or
proposing an illegal activity; (2) government interest sought to be served by
regulation must be substantial; (3) the regulation must advance government
interest; and (4) the regulation must not be overbroad. (Bernas Commentary,
2009)
 Q: COMELEC executed a MOA with several broadcasting networks in staging debates
for the 2016 National Elections. Rappler, an internet-based news site assailed the
constitutionality of the MOA contending that they are being discriminated for they are
being denied to broadcast the debates via live online streaming. Decide.
o A: The court ordered the COMELEC to allow Rappler to broadcast via online
streaming pursuant to Part VI (C), paragraph 19 of the MOA which allows the
debates to be shown or streamed on other websites but subject to conditions from
the other networks. (Rappler v. Bautista, 2016)
 Q:
 Q: Discuss the "doctrine of fair comment" as a valid defense in an action for libel or
slander.
o A: Fair commentaries on matters of public interest are privileged and constitute a
valid defense in an action for libel or slander. The doctrine of fair comment
means that while in general every discreditable imputation publicly made is
deemed false, because every man is presumed innocent until his guilt is judicially
proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity,
it is not necessarily actionable. In order that such discreditable imputation to a
public official may be actionable, it must either be a false allegation of fact or a
comment based on a false supposition. If the comment is an expression of
opinion, based on established facts, then it is immaterial that the opinion happens
to be mistaken, as long as it might reasonably be inferred from the facts. (Borjal
v. CA, 301 SCRA 1, Jan. 14, 1999, 2nd Div. [Bellosillo])
 Q: What is the “raison d’etre” for the New York Times v. Sullivan (376 US 254)
holding that honest criticisms on the conduct of public officials and public figures are
insulated from libel judgments?
o A: The guarantees of freedom of speech and press prohibit a public official or
public figure from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual malice,
i.e., with knowledge that it was false or with reckless disregard of whether it was
false or not.
o The raison d’etre for the New York Times doctrine was that to require critics of
official conduct to guarantee the truth of all their factual assertions on pain of
libel judgments would lead to self-censorship, since would-be critics would be
deterred from voicing out their criticisms even if such were believed to be true, or
were in fact true, because of doubt whether it could be proved or because of fear
of the expense of having to prove it.
 Q: Should the Court allow live media coverage of the anticipated trial of the plunder and
other criminal cases filed against former President Joseph E. Estrada before the
Sandiganbayan in order “to assure the public of full transparency in the proceedings of an
unprecedented case in our history” as requested by the Kapisanan ng mga Brodkaster ng
Pilipinas?
o A: The propriety of granting or denying the instant petition involve the weighing
out of the constitutional guarantees of freedom of the press and the right to public
information, on the one hand, and the fundamental rights of the accused, on the
other hand, along with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial trial. When these rights race against
one another, jurisprudence tells us that the right of the accused must be preferred
to win. (Re: Request Radio-TV coverage of the Trial in the Sandiganbayan of
the Plunder Cases against the former President Joseph E. Estrada, A.M. No.
01-4-03-SC, June 29, 2001, En Banc [Vitug])
 Q: What is freedom of assembly?
o A: It is the right to freedom of speech and to peaceably assemble and petition the
government for redress of grievances are fundamental personal rights of the
people guaranteed by the constitutions of democratic countries. City or town
mayors are not conferred the power to refuse to grant the permit, but only the
discretion in issuing the permit to determine or specify the streets or public places
where the parade may pass or the meeting may be held. [Primicias v. Fugoso
(1948)]
 Q: Can this right be denied?
o A: No. Absent any clear and present danger of a substantive evil, peaceable
assembly in public places like streets or parks cannot be denied. [J.B.L. Reyes v.
Bagatsing (1983)]
 Q: What are freedom parks?
o A: B.P. 880 provides that every city and municipality must set aside a freedom
park within six months from the law’s effectivity in 1985. Section 15 of the law
provides for an alternative forum through the creation of freedom parks where no
prior permit is needed for peaceful assembly and petition at any time. Without
such alternative forum, to deny the permit would in effect be to deny the right to
peaceably assemble. (UP Political Law Reviewer 2013)
 Q: The Office of the Mayor of Las Pinas refused to issue permit to petitioners to hold
rally a rally in front of the Justice Hall of Las Pinas on the ground that it was prohibited
under Supreme Court En Banc Resolution dated July 7,1998 in A.M. No. 98-7-02-SC,
entitled, "Re: Guidelines on the Conduct of Demonstrations, Pickets, Rallies and Other
Similar Gatherings in the Vicinity of the Supreme Court and All Other Courts."
Petitioners thus initiated the instant proceedings. They submit that the Supreme Court
gravely abused its discretion and/or acted without or in excess of jurisdiction in
promulgating those guidelines. Decide.
o A: It is true that the safeguarding of the people's freedom of expression to the end
that individuals may speak as they think on matters vital to them and that
falsehoods may be exposed through the processes of education and discussion, is
essential to free government. But freedom of speech and expression despite its
indispensability has its limitations. The Court reiterates that judicial
independence and the fair and orderly administration of justice constitute
paramount governmental interests that can justify the regulation of the public's
right of free speech and peaceful assembly in the vicinity of courthouses. (In Re:
Petition to Annul En Banc Resolution A.M. 98-7-02-SC - Ricardo C. Valmonte
and Union of Lawyers and Advocates for Transparency in Government
[ULAT], G.R. No. 134621, Sept. 29, 1998)