Pablito Sanidad vs Commission on Elections

73 SCRA 333 Political Law Constitutional Law Amendment to the Constitution

On 2 Sept 1976, Marcos issued PD No. 991 calling for a national referendum on 16 Oct 1976 for the Citizens Assemblies (barangays) to resolve, among other things, the issues of martial law, the interim assembly, its replacement, the powers of such replacement, the period of its existence, the length of the period for the exercise by the President of his present powers. Twenty days after, the President issued another related decree, PD No. 1031, amending the previous PD No. 991, by declaring the provisions of PD No. 229 providing for the manner of voting and canvass of votes in barangays applicable to the national referendum-plebiscite of Oct 16, 1976. Quite relevantly, PD No. 1031 repealed inter alia, Sec 4, of PD No. 991. On the same date of 22 Sept 1976, Marcos issued PD No. 1033, stating the questions to he submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites in its whereas clauses that the peoples continued opposition to the convening of the interim National Assembly evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a new interim legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.

On September 27, 1976, Sanidad filed a Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-Plebiscite scheduled on October 16, 1976.Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to exercise the constituent power to propose amendments to the new Constitution. As a consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis. The Soc-Gen contended that the question is political in nature hence the court cannot take cognizance of it.

ISSUE: Whether or not Marcos can validly propose amendments to the Constitution.

HELD: Yes. The amending process both as to proposal and ratification raises a judicial question. This is especially true in cases where the power of the Presidency to initiate the amending process by proposals of amendments, a function normally exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to propose amendments to the Constitution resides in the interim National Assembly during the period of transition (Sec. 15, Transitory Provisions). After that period, and the regular

National Assembly in its active session, the power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 Constitution). The normal course has not been followed. Rather than calling the interim National Assembly to constitute itself into a constituent assembly, the incumbent President undertook the proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity of the procedure for amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of this Court to pass upon. Section 2 (2) Article X of the new Constitution provides: All cases involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. . . .. The Supreme Court has the last word in the construction not only of treaties and statutes, but also of the Constitution itself. The amending, like all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the Supreme Court is vested with that authority to determine whether that power has been discharged within its limits.

This petition is however dismissed. The President can propose amendments to the Constitution and he was able to present those proposals to the people in sufficient time. The President at that time also sits as the legislature.

GITLOW VS NEW YORK

Term: 1901-1939 o 1922

Location: Gitlow's Office (Left Wing of the Socialist Party) Facts of the Case

Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.

Question

Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?

Conclusion

Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.

SCHENCK VS US

Term: 1901-1939 o 1918

Location: Socialist Headquarters Facts of the Case During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Question

Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Conclusion Decision: 9 votes for United States, 0 vote(s) against Legal provision: 1917 Espionage Act; US Const Amend 1

Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used 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." During wartime, utterances tolerable in peacetime can be punished.

National Press Club v. COMELEC

207 SCRA 1-March 5, 1992Ponente: Feliciano

Case:

3 consolidated petitions, with the common question: the constitutionality of11(b), of RA6646Petitoners: representatives of mass media which are prevented from sellingor donating space and time for political advertisements; 2 candidates for office (1national, 1 provincial) in the coming May 1992 elections; taxpayers and voters whoclaim that their right to be informed of election issues and of credentials of thecandidates is being curtailed. (I will refer to these folks as Petitoners (P))

Facts:

Petitioners argument:

That 11(b), of RA6646 invades and violated theconstitutional guarantees comprising freedom of expression;

That the prohibition imposed by 11(b) amounts tocensorship, because it selects and singles out for suppression andrepression with criminal sanctions, only publications of a particularcontent, namely, media-based election or political propaganda duringthe election pd. of 1992;

That the prohibition is in derogation of medias role,function and duty to provide adequate channels of public informationand public opinion relevant to election issues;

That 11(b) abridges the freedom of speech ofcandidates, and that the suppression of media-based campaign orpolitical propaganda except those appearing in the Comelec space ofthe newspapers and on Comelec time of radio and tv broadcasts,would bring about a substantial reduction in the quantity or volume ofinfo concerning candidates and issues in the election, therebycurtailing and limiting the right of voters to info and opinion.

Issue:

WON 11(b) of RA 6646 has gone beyond the permissible supervision orregulation of media operations so as to constitute unconstitutional repression offreedom of speech & freedom of the press

SC says:

Nope. It has not gone outside the permissible bounds of supervision orregulation of media operations during election periods.

Ratio:

The assailed statute

The statutory text the P want to strike down asunconstitutional is 11(b) of RA 6646, aka the Electoral Reforms Lawof 1987Section 11.

Prohibited Forms of Election Propaganda

-in addition to theforms of election propaganda prohibited under Section 85 of Batas Pambansa Blg.881, it shall be unlawful;(b) for any

newspapers, radio broadcasting or television station,other mass media,

or any person making use of the mass media to

sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881.

Any mass media columnist, commentator, announcer, orpersonality who is candidate for any elective public office shall take a leave ofabsence from his work as such during the campaign period.

11(b) of RA 6646 should be taken together withSections 90 & 92 of BP 881 aka Omnibus Election Code of thePhilippines. (for the full text, see p. 7)

90

refers to the Comelec space- space in the newspaper to beallocated equally and impartially to all the candidates within the area of coverage,free of charge

92

refers to the Comelec time air time in radio and tv to be allocatedequally and impartially to all the candidates within the area of coverage, free ofcharge.

Objective of the statute

Objective of 11(b)-to equalize, as far as practicable,the situations of rich and poor candidates by preventing the richfrom enjoying undue advantage offered by huge campaign warchests.

It prohibits the sale or donation of print space and airtime for campaign or other political purposes except to Comelec.

90&92 of the OEC on the other hand, require theComelec to procure Comelec space and Comelec time to be allocatedto all candidates for free.

No one seriously disputes the legitimacy or theimportance of the objective sought to be secured by 11(b) of RA6646 in relation to 90&92 of the OEC

Iglesia ni Cristo v. Court of Appeals, G.R. No. 119673, July 26, 1996

D E C I S I O N

PUNO, J.:

I. THE FACTS

Several pre-taped episodes of the TV program Ang Iglesia ni Cristo of the

religious group Iglesia ni Cristo (INC) were rated X i.e., not for public viewing

by the respondent Board of Review for Moving Pictures and Television (now

MTRCB). These TV programs allegedly offend[ed] and constitute[d] an attack

against other religions which is expressly prohibited by law because of petitioner

INCs controversial biblical interpretations and its attacks against contrary

religious beliefs.

Petitioner INC went to court to question the actions of respondent Board.

The RTC ordered the respondent Board to grant petitioner INC the necessary

permit for its TV programs. But on appeal by the respondent Board, the CA

reversed the RTC. The CA ruled that: (1) the respondent Board has jurisdiction

and power to review the TV program Ang Iglesia ni Cristo, and (2) the

respondent Board did not act with grave abuse of discretion when it denied

permit for the exhibition on TV of the three series of Ang Iglesia ni Cristo on the

ground that the materials constitute an attack against another religion. The CA

also found the subject TV series indecent, contrary to law and contrary to good

customs. Dissatisfied with the CA decision, petitioner INC appealed to the

Supreme Court.

II. THE ISSUES

(1) Does respondent Board have the power to review petitioners TV

program?

(2) Assuming it has the power, did respondent Board gravely abuse its

discretion when it prohibited the airing of petitioners religious program?

III. THE RULING

[The Court voted 13-1 to REVERSE the CA insofar as the CA sustained

the action of the respondent Boards X-rating petitioners TV Program Series

Nos. 115, 119, and 121. It also voted 10-4 to AFFIRM the CA insofar as the CA it

sustained the jurisdiction of the respondent MTRCB to review petitioners TV

program entitled Ang Iglesia ni Cristo.]

1. YES, respondent Board has the power to review petitioners TV

program.

Petitioner contends that the term television program [in Sec. 3 of PD No.

1986 that the respondent Board has the power to review and classify] should not

include religious programs like its program Ang Iglesia ni Cristo. A contrary

interpretation, it is urged, 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. The free exercise and enjoyment

of religious profession and worship, without discrimination or preference, shall

forever be allowed.

[The Court however] reject petitioners postulate. Petitioners public

broadcast on TV of its religious program brings it out of the bosom of internal

belief. Television is a medium that reaches even the eyes and ears of children.

The Court iterates the rule thatthe exercise of religious freedom can be regulated

by the State when it will bring about the clear and present danger of some

substantive evil which the State is duty bound to prevent, i.e., serious detriment

to the more overriding interest of public health, public morals, or public welfare.

A laissez faire policy on the exercise of religion can be seductive to the liberal

mind but history counsels the Court against its blind adoption as religion is and

continues to be a volatile area of concern in our country today. . . [T]he Court]

shall continue to subject any act pinching the space for the free exercise of

religion to a heightened scrutiny but we shall not leave its rational exercise to the

irrationality of man. For when religion divides and its exercise destroys, the State

should not stand still.

2. YES, respondent Board gravely abuse its discretion when it

prohibited the airing of petitioners religious program.

[A]ny act that restrains speech is hobbled by the presumption of invalidity

and should be greeted with furrowed brows. It is the burden of the respondent

Board to overthrow this presumption. If it fails to discharge this burden, its act of

censorship will be struck down. It failed in the case at bar.

The evidence shows that the respondent Board x-rated petitioners TV

series for attacking either religions, especially the Catholic Church. An

examination of the evidence . . . will show that the so-called attacks are

mere criticisms of some of the deeply held dogmas and tenets of other religions.

The videotapes were not viewed by the respondent court as they were not

presented as evidence. Yet they were considered by the respondent court as

indecent, contrary to law and good customs, hence, can be prohibited from public

viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's

freedom of speech and interferes with its right to free exercise of religion. xxx.

The respondent Board may disagree with the criticisms of other religions

by petitioner but that gives it no excuse to interdict such criticisms, however,

unclean they may be. Under our constitutional scheme, it is not the task of the

State to favor any religion by protecting it against an attack by another religion. . .

In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo

simply because it attacks other religions, even if said religion happens to be the

most numerous church in our country. In a State where there ought to be no

difference between the appearance and the reality of freedom of religion, the

remedy against bad theology is better theology. The bedrock of freedom of

religion is freedom of thought and it is best served by encouraging the

marketplace of duelling ideas. When the luxury of time permits, the marketplace

of ideas demands that speech should be met by more speech for it is the spark

of opposite speech, the heat of colliding ideas that can fan the embers of truth.

In x-rating the TV program of the petitioner, the respondents failed to apply

the clear and present danger rule. In American Bible Society v. City of Manila,

this Court held: The constitutional guaranty of free exercise and enjoyment of

religious profession and worship carries with it the right to disseminate religious

information. Any restraint of such right can be justified like other restraints on

freedom of expression on the ground that there is a clear and present danger of

any substantive evil which the State has the right to prevent. In Victoriano

vs. Elizalde Rope Workers Union, we further ruled that . . . it is only where it is

unavoidably necessary to prevent an immediate and grave danger to the security

and welfare of the community that infringement of religious freedom may be

justified, and only to the smallest extent necessary to avoid the danger.

The records show that the decision of the respondent Board, affirmed by

the respondent appellate court, is completely bereft of findings of facts to justify

the conclusion that the subject video tapes constitute impermissible attacks

against another religion. There is no showing whatsoever of the type of harm the

tapes will bring about especially the gravity and imminence of the threatened

harm. Prior restraint on speech, including religious speech, cannot be justified by

hypothetical fears but only by the showing of a substantive and imminent evil

which has taken the life of a reality already on ground.

Miriam College Foundation, Inc. v CA 348 SCRA 265 (December 15, 2000)

Facts: The members of the editorial board of the Miriam College Foundations

school paper were subjected to disciplinary sanction by the College Discipline

Committee after letters of complaint were filed before the Board following the

publication of the school paper that contains obscene, vulgar, and sexually

explicit contents. Prior to the disciplinary sanction to the defendants they were

required tosubmit a written statement to answer the complaints against them to

the Discipline Committee but the defendants, instead of doing so wrote to the

Committee to transfer the case to the DECS which they alleged to have the

jurisdiction over the issue. Pushing through with the investigation ex parte the

Committee found the defendants guilty and imposed upon them disciplinary

sanctions. Defendantsfiled before the court for prohibition with preliminary

injunction on said decision of the Committee questioning the jurisdiction of said

Discipline Board over the defendants.

Issue: WON the Discipline Board of Miriam College has jurisdiction over

the defendants.

Held: The court resolved the issue before it by looking through the power of

DECS and the Disciplinary Committee in imposing sanctions upon

thedefendants. Section 5 (2), Article XIV of the Constitution guarantees all

institutions of higher learning academic freedom. This institutional academic

freedom includes the right of the school or college to decide for itself, its aims

and objectives, and how best to attain them free from outside coercion or

interference save possibly when the overriding public welfare calls for some

restraint. Such duty gives the institution the right to discipline its students and

inculcate upon them good values, ideals and attitude. The right of students to

free speech in school is not always absolute. The court upheld the right of

students for the freedom of expression but it does not rule out disciplinary actions

of the school on the conduct of their students. Further, Sec. 7 of the of the

Campus Journalism Act provides that the school cannot suspend or expel a

student solely on the basis of the articles they write EXCEPT when such article

materially disrupts class work of involve substantial disorder or invasion of the

rights of others. Therefore the court ruled that the power of the school to

investigate is an adjunct of its power to suspend or expel. It is a necessary

corollary to the enforcement of rules and regulations and the maintenance of a

safe and orderly educational environment conducive to learning. That power, like

the power to suspend or expel, is an inherent part of the academic freedom of

institutions of higher learning guaranteed by the Constitution. The court held

that Miriam College has the authority to hear and decide the cases filed against

respondent students.1wph

Ayer Productions Pty. Ltd. Vs Capulong, 160 SCRA 861, G.R. NO. L-82380; 29 APR 1988

Posted by Pius Morados on November 13, 2011

(Constitutional Law Right to Free Speech, Public Figure) FACTS: Respondent Sen. 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 formers right to privacy.

Petitioners contends that the freedom to produce and film includes in the freedom of speech and expression; and the subject matter of the motion picture is one of public interest and concern and not on the individual private life of respondent senator.

ISSUE: WON the projected motion picture is guaranteed under the right to free speech.

HELD: Yes. The EDSA revolution where private respondent is a major character is one of public interest. Private respondent is a public figure due to his participation in the culmination of the change of government. The right of privacy of the a public figure is necessarily narrower than that of an ordinary citizen.

Gonzales v Katigbak G.R. No. L-69500 July 22, 1985

CJ Fernando

Facts:

Antonio Gonzales, president of Malaya Films, claimed that his film Kapit sa Patalim, was rated for adults only by a subcommittee of the movie review board together with the required cuts and scene deletions. He justified that these requirements were without basis and were restrains on artistic expression. He adduced that the film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for its classification.

He appealed to the movie review board but the same affirmed the decion of the sub committee.

When Gonzales appealed to the supreme court, the board claimed that the deletions were removed and the requirement to submit the master negative was taken out but the film was still rated for adults only. The petition was amended to contest the rating only.

Issue: Was the rating made with grave avuse of discretion (Note I put in those regarding obscenity for future purposes)

Held: No. Petition dismissed. There was no grave abuse of discretion DUE TO LACK OF VOTES

Ratio:

Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse

Burstyn-importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform

(No clear dividing line between what affords knowledge and that of pleasure or else there will be a diminution to a right to self-expression)

Bagatsing- Press freedom may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a substantive evil that [the State] has a right to prevent.

Censorship doesnt full cover free speech or there might bean emasculation of basic rights. However, there must be in exceptional circumstances a sine qua non for the meaningful exercise of such right without denying the freedom from liability.

Freedom from censorship is a settled principle in our jurisdiction. Mutuc- board of review is limited to classification of films to safeguard other constitutional objections, hence the GP, PG, or R-18 ratings.

That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity

The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable.

Where movies are concerned, censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest.

Roth- "All Ideas having even the slightest redeeming social importance unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

Given obscenity as the nemesis of censorship, there is difficulty in determining what is obsecene.

Roth- The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons

The test was whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to

prurient interest. Some material can legitimately deal with sex and its effects on susceptible persons. Such a censorship can be considered violative of the constitution. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity.

Roth- Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.

In the Philippine context, E.O. 876 applied contemporary Filipino cultural values as a standard.

Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State.

Given this constitutional mandate, It will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene.

On the question of obscenity, therefore, such standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision in Trinidad- an elementary, a fundamental, and a universal role of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions' one of which will maintain and the other destroy it, the courts will always adopt the former.

There can be no valid objection to the controlling standard.

There was really a grave abuse of discretion when the Board and its perception of what obscenity is is very restrictive.

But, sadly, THERE WERE NOT ENOUGH VOTES TO MAINTAIN THAT THERE WAS GRAVE ABUSE OF DISCRETION. The supporting evidence was in the fact that some scenes were not for young people. They might misunderstand the

scenes. The respondents offered to make it GP if the petitioners would remove the lesbian and sex scenes. But they refused.

The ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned: a less liberal approach calls forobservance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set.

It is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.

CHAVEZ VS GONZALES

MARCH 30, 2013 ~ VBDIAZ

FRANCISCO CHAVEZ

vs.

RAUL M. GONZALES, in his capacity as the Secretary of the Department of

Justice; and NTC

G.R. No. 168338, February 15, 2008

FACTS: Sometime before 6 June 2005, the radio station dzMM aired the Garci

Tapes where the parties to the conversation discussed rigging the results of the

2004 elections to favor President Arroyo. On 6 June 2005, Presidential

spokesperson Bunye held a press conference in Malacaang Palace, where he

played before the presidential press corps two compact disc recordings of

conversations between a woman and a man. Bunye identified the woman in both

recordings as President Arroyo but claimed that the contents of the second

compact disc had been spliced to make it appear that President Arroyo was

talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and stated that the womans voice

in the compact discs was not President Arroyos after all.3 Meanwhile, other

individuals went public, claiming possession of the genuine copy of the Garci

Tapes. Respondent Gonzalez ordered the NBI to investigate media organizations

which aired the Garci Tapes for possible violation of Republic Act No. 4200 or the

Anti-Wiretapping Law.

On 11 June 2005, the NTC issued a press release warning radio and television

stations that airing the Garci Tapes is a cause for the suspension, revocation

and/or cancellation of the licenses or authorizations issued to them. On 14 June

2005, NTC officers met with officers of the broadcasters group KBP, to dispel

fears of censorship. The NTC and KBP issued a joint press statement expressing

commitment to press freedom

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this

petition to nullify the acts, issuances, and orders of the NTC and respondent

Gonzalez (respondents) on the following grounds: (1) respondents conduct

violated freedom of expression and the right of the people to information on

matters of public concern under Section 7, Article III of the Constitution, and (2)

the NTC acted ultra vires when it warned radio and television stations against

airing the Garci Tapes.

ISSUE: The principal issue for resolution is whether the NTC warning embodied

in the press release of 11 June 2005 constitutes an impermissible prior restraint

on freedom of expression.

1. Standing to File Petition

Petitioner has standing to file this petition. When the issue involves freedom of

expression, as in the present case, any citizen has the right to bring suit to

question the constitutionality of a government action in violation of freedom of

expression, whether or not the government action is directed at such citizen.

Freedom of expression, being fundamental to the preservation of a free, open

and democratic society, is of transcendental importance that must be defended

by every patriotic citizen at the earliest opportunity.

2. Overview of Freedom of Expression, Prior Restraint and Subsequent

Punishment

Freedom of expression is the foundation of a free, open and democratic society.

Freedom of expression is an indispensable condition8 to the exercise of almost

all other civil and political rights. Freedom of expression allows citizens to expose

and check abuses of public officials. Freedom of expression allows citizens to

make informed choices of candidates for public office.

Section 4, Article III of the Constitution prohibits the enactment of any law

curtailing freedom of expression:

No law shall be passed abridging the freedom of speech, of expression, or the

press, or the right of the people peaceably to assemble and petition the

government for redress of grievances.

Thus, the rule is that expression is not subject to any prior restraint or censorship

because the Constitution commands that freedom of expression shall not be

abridged. Over time, however, courts have carved out narrow and well defined

exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior restraint, apply in this

jurisdiction to only four categories of expression, namely:

pornography,

false or misleading advertisement,

advocacy of imminent lawless action, and

danger to national security.

All other expression is not subject to prior restraint.

Expression not subject to prior restraint is protected expression or high-value

expression. Any content-based prior restraint on protected expression is

unconstitutional without exception. A protected expression means what it says

it is absolutely protected from censorship. Thus, there can be no prior restraint on

public debates on the amendment or repeal of existing laws, on the ratification of

treaties, on the imposition of new tax measures, or on proposed amendments to

the Constitution.

If the prior restraint is not aimed at the message or idea of the expression, it is

content-neutral even if it burdens expression. A content-neutral restraint is a

restraint which regulates the time, place or manner of the expression in public

places without any restraint on the content of the expression. Courts will subject

content-neutral restraints to intermediate scrutiny. An example of a content-

neutral restraint is a permit specifying the date, time and route of a rally passing

through busy public streets. A content-neutral prior restraint on protected

expression which does not touch on the content of the expression enjoys the

presumption of validity and is thus enforceable subject to appeal to the courts.

Expression that may be subject to prior restraint is unprotected expression or

low-value expression. By definition, prior restraint on unprotected expression is

content-based since the restraint is imposed because of the content itself. In this

jurisdiction, there are currently only four categories of unprotected expression

that may be subject to prior restraint. This Court recognized false or misleading

advertisement as unprotected expression only in October 2007.

Only unprotected expression may be subject to prior restraint. However, any

such prior restraint on unprotected expression must hurdle a high barrier. First,

such prior restraint is presumed unconstitutional. Second, the government bears

a heavy burden of proving the constitutionality of the prior restraint.

Prior restraint is a more severe restriction on freedom of expression than

subsequent punishment. Although subsequent punishment also deters

expression, still the ideas are disseminated to the public. Prior restraint prevents

even the dissemination of ideas to the public.

While there can be no prior restraint on protected expression, such expression

may be subject to subsequent punishment,27 either civilly or criminally. Similarly,

if the unprotected expression does not warrant prior restraint, the same

expression may still be subject to subsequent punishment, civilly or criminally.

Libel falls under this class of unprotected expression.

However, if the expression cannot be subject to the lesser restriction of

subsequent punishment, logically it cannot also be subject to the more severe

restriction of prior restraint. Thus, since profane language or hate speech

against a religious minority is not subject to subsequent punishment in this

jurisdiction, such expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily the same

expression is subject to subsequent punishment. There must be a law punishing

criminally the unprotected expression before prior restraint on such expression

can be justified.

The prevailing test in this jurisdiction to determine the constitutionality of

government action imposing prior restraint on three categories of unprotected

expression pornography,31 advocacy of imminent lawless action, and danger

to national security is the clear and present dangertest.32 The expression

restrained must present a clear and present danger of bringing about a

substantive evil that the State has a right and duty to prevent, and such danger

must be grave and imminent.

Prior restraint on unprotected expression takes many forms it may be a law,

administrative regulation, or impermissible pressures like threats of revoking

licenses or withholding of benefits.34 The impermissible pressures need not be

embodied in a government agency regulation, but may emanate from policies,

advisories or conduct of officials of government agencies.

3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the

airing or broadcasting of the Garci Tapes by radio and television stations is a

cause for the suspension, revocation and/or cancellation of the licenses or

authorizations issued to radio and television stations. The NTC warning,

embodied in a press release, relies on two grounds. First, the airing of the Garci

Tapes is a continuing violation of the Anti-Wiretapping Law and the conditions of

the Provisional Authority and/or Certificate of Authority issued to radio and TV

stations. Second, the Garci Tapes have not been authenticated, and subsequent

investigation may establish that the tapes contain false information or willful

misrepresentation.

The NTC does not claim that the public airing of the Garci Tapes constitutes

unprotected expression that may be subject to prior restraint. The NTC does not

specify what substantive evil the State seeks to prevent in imposing prior

restraint on the airing of the Garci Tapes. The NTC does not claim that the public

airing of the Garci Tapes constitutes a clear and present danger of a substantive

evil, of grave and imminent character, that the State has a right and duty to

prevent.

The NTC did not conduct any hearing in reaching its conclusion that the airing of

the Garci Tapes constitutes a continuing violation of the Anti-Wiretapping Law.

There is also the issue of whether a wireless cellular phone conversation is

covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the

Garci Tapes constitutes a violation of the Anti-Wiretapping Law. The radio and

television stations were not even given an opportunity to be heard by the NTC.

The NTC did not observe basic due process as mandated in Ang Tibay v. Court

of Industrial Relations.

The NTC concedes that the Garci Tapes have not been authenticated as

accurate or truthful. The NTC also concedes that only after a prosecution or

appropriate investigation can it be established that the Garci Tapes constitute

false information and/or willful misrepresentation. Clearly, the NTC admits that it

does not even know if the Garci Tapes contain false information or willful

misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior

restraint because it is directed at the message of the Garci Tapes. The NTCs

claim that the Garci Tapes might contain false information and/or willful

misrepresentation, and thus should not be publicly aired, is an admission that

the restraint is content-based.

5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does

not fall under any of the four existing categories of unprotected expression

recognized in this jurisdiction. The airing of the Garci Tapes is essentially a

political expression because it exposes that a presidential candidate had

allegedly improper conversations with a COMELEC Commissioner right after the

close of voting in the last presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the

ballot. Public discussion on the sanctity of the ballot is indisputably a protected

expression that cannot be subject to prior restraint. In any event, public

discussion on all political issues should always remain uninhibited, robust and

wide open.

The rule, which recognizes no exception, is that there can be no content-based

prior restraint on protected expression. On this ground alone, the NTC press

release is unconstitutional. Of course, if the courts determine that the subject

matter of a wiretapping, illegal or not, endangers the security of the State, the

public airing of the tape becomes unprotected expression that may be subject to

prior restraint. However, there is no claim here by respondents that the subject

matter of the Garci Tapes involves national security and publicly airing the tapes

would endanger the security of the State.

The airing of the Garci Tapes does not violate the right to privacy because the

content of the Garci Tapes is a matter of important public concern. The

Constitution guarantees the peoples right to information on matters of public

concern. The remedy of any person aggrieved by the public airing of the Garci

Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the

commission of the crime. Subsequent punishment, absent a lawful defense, is

the remedy available in case of violation of the Anti-Wiretapping Law.

While there can be no prior restraint on protected expression, there can be

subsequent punishment for protected expression under libel, tort or other laws. In

the present case, the NTC action seeks prior restraint on the airing of the Garci

Tapes, not punishment of personnel of radio and television stations for actual

violation of the Anti-Wiretapping Law.

6. Only the Courts May Impose Content-Based Prior Restraint

The NTC has no power to impose content-based prior restraint on expression.

The charter of the NTC does not vest NTC with any content-based censorship

power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that

can never be subject to prior restraint. However, even assuming for the sake of

argument that the airing of the Garci Tapes constitutes unprotected expression,

only the courts have the power to adjudicate on the factual and legal issue of

whether the airing of the Garci Tapes presents a clear and present danger of

bringing about a substantive evil that the State has a right and duty to prevent, so

as to justify the prior restraint.

Any order imposing prior restraint on unprotected expression requires prior

adjudication by the courts on whether the prior restraint is constitutional. This is a

necessary consequence from the presumption of invalidity of any prior restraint

on unprotected expression.

7. Government Failed to Overcome Presumption of Invalidity

Respondents did not invoke any compelling State interest to impose prior

restraint on the public airing of the Garci Tapes. The respondents claim that they

merely fairly warned radio and television stations to observe the Anti-

Wiretapping Law and pertinent NTC circulars on program standards.

Respondents have not explained how and why the observance by radio and

television stations of the Anti-Wiretapping Law and pertinent NTC circulars

constitutes a compelling State interest justifying prior restraint on the public airing

of the Garci Tapes.

Violation of the Anti-Wiretapping Law, like the violation of any criminal statute,

can always be subject to criminal prosecution after the violation is committed.

Respondents have not explained how the violation of the Anti-Wiretapping Law,

or of the pertinent NTC circulars, can incite imminent lawless behavior or

endanger the security of the State.

8. The NTC Warning is a Classic Form of Prior Restraint

The NTC press release threatening to suspend or cancel the airwave permits of

radio and television stations constitutes impermissible pressure amounting to

prior restraint on protected expression. Whether the threat is made in an order,

regulation, advisory or press release, the chilling effect is the same: the threat

freezes radio and television stations into deafening silence. Radio and television

stations that have invested substantial sums in capital equipment and market

development suddenly face suspension or cancellation of their permits. The NTC

threat is thus real and potent.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior restraint on

protected expression. There can be no content-based prior restraint on protected

expression. This rule has no exception.

New York Times Co. v. Sullivan

New York Times Co. v. Sullivan, 376 U.S. 254 (1964),[1] was a United States Supreme Court case that established the actual malice standard, which has to be met before press reports about public officials can be considered to be defamation and libel;[2] and hence allowed free reporting of the civil

rights campaigns in the southern United States. It is one of the key decisions supporting thefreedom of the press. The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty of proving the defendant's knowledge and intentions, such caseswhen they involve public figuresrarely prevail.

Before this decision, there were nearly US $300 million in libel actions outstanding against news organizations from the Southern states, and it had caused many publications to exercise great caution when reporting on civil rights, for fear that they might be held accountable for libel.[citation needed] After The New York Times prevailed in this case, news organizations were free to report the widespread disorder and civil rights infringements. The Times maintained that the case against it was brought to intimidate news organizations and prevent them from reporting illegal actions of public employees in the South as they attempted to continue to support segregation.

Contents

[hide]

1 Background of the case

2 The court's decision

o 2.1 Actual malice

3 International comparisons

4 50th anniversary

5 Later developments

6 See also

7 Notes

8 Further reading

9 External links

Background of the case[edit]

On March 29, 1960, The New York Times carried a full-page advertisement titled "Heed Their Rising Voices",[3][4] which solicited funds to defend Martin Luther King, Jr. against an Alabama perjury indictment. The advertisement described actions against civil rights protesters, some of them inaccurately, some of which involved the police force of Montgomery, Alabama. Discrepancies were generally minor.[citation needed] Referring to the Alabama State Police, the advertisement stated: "They have arrested [King] seven times..."[5] However, at that point he had been arrested four times.[5] Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not My Country, 'Tis

of Thee.[5] Although the Montgomery Public Safety commissioner, L. B. Sullivan, was not named in the advertisement, the inaccurate criticism of actions by the police was considered defamatory to Sullivan as well, due to his duty to supervise the police department.[5]

Alabama law denied a public officer recovery of punitive damages in a libel action concerning their official conduct unless they first made a written demand for a public retraction and the defendant failed or refused to comply, so Sullivan sent such a request.[1] TheTimes did not publish a retraction in response to the demand. Instead it wrote a letter[citation needed] stating, among other things, that "we ... are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you".[1] Sullivan did not respond but instead filed a libel suit a few days later. He also sued four black ministers mentioned in the ad, specifically Ralph Abernathy, S.S. Seay, Sr., Fred Shuttlesworth, and Joseph Lowery. Sullivan won $500,000 in an Alabama court judgment.[6]

The Times did subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who alleged the publication charged him with "grave misconduct and ... improper actions and omissions as Governor of Alabama and ex officio chairman of the State Board of Education of Alabama."[1] When asked to explain why there had been a retraction for the Governor but not for Sullivan, the Secretary of the Times testified: "We did that because we didn't want anything that was published by theTimes to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the state and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the state authorities and the Board of Education presumably of which the Governor is the ex officio chairman....". However, the Secretary also testified he did not think that "any of the language in there referred to Mr. Sullivan."[1]

The court's decision[edit]

The Court ruled for The Times, 90.[6] The rule of law applied by the Alabama courts was found constitutionally deficient for failure to provide safeguards for freedom of speech and of the press, as required by the First and Fourteenth Amendment. The decision further held that even with the proper safeguards, the evidence presented in this case was insufficient to support a judgment for Sullivan. In sum the court ruled that "the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)."[7]

Actual malice[edit]

The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice. In this context, the phrase refers to knowledge or reckless lack of investigation, rather than its ordinary meaning of malicious intent. In his concurring opinion, Justice Black explained that "'[m]alice,' even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment."

The term "malice" was not newly invented for the case; it came from existing libel law. In many jurisdictions, including Alabama (where the case arose), proof of "actual malice" (actual knowledge of falsity, or reckless disregard for the truth) was required in order for punitive damages to be awarded, or for other increased penalties. Since a writer's malicious intent is hard to prove, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a person with ill intent would knowingly publish something false. In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930), similarly, the court said: "The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice." (p. 106)

In New York Times Co. v. Sullivan, the Supreme Court adopted the term "actual malice," giving it constitutional significance.