Freedom of Expression/ Right To Peaceably Assemble: 2020 Constitutional Law 2 (Lecture 3)

2020 Constitutional Law 2 (Lecture 3) 3/31/2020
2020 CONSTITUTIONAL LAW 2

(LECTURE 3)
By: Atty. Enrique V. dela Cruz, Jr.
FREEDOM OF
EXPRESSION/
RIGHT TO
PEACEABLY
ASSEMBLE
2
Copyright by Atty. Enrique V. dela Cruz, Jr. 1

Section 4. 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.
(Art. III, Sec 4, 1987 Constitution)
Q: What are the limitations of

freedom of expression?
A: It should be exercised within
the bounds of laws enacted for
the promotion of social
interests and the protection of
other equally important
individual rights such as:

• Laws against obscenity, libel and slander

(contrary to public policy)
• Right to privacy of an individual
• Right of state/government to be protected
from seditious attacks
• Legislative immunities
• Fraudulent matters
• Advocacy of imminent lawless conducts
• Fighting words
• Guarantee implies only the right to reach a
willing audience but not the right to compel
others to listen, see or read
Q: What are the four aspects of

freedom of speech and press?
1. Freedom from censorship or prior

restraint;
2. Freedom from subsequent
punishment;
3. Freedom of access to information;
4. Freedom of circulation

The Right to FREE SPEECH

• Students decided
to wear “black
armbands,” as a
sign of protest.
• May the school

validly prohibit the
wearing of “black
armbands” inside
the school?
Tinker v. Des Moines (U.S. case)

• 393 U.S. 503, 1969, Des Moines, Iowa
• Mary Beth Tinker was a 13-year-old junior high
school student in December 1965 when she
and a group of students decided to wear black
armbands to school to protest the war in
Vietnam.
• The school board got wind of the protest and
passed a preemptive ban.
• When Mary Beth arrived at school on Dec. 16,
she was asked to remove the armband and
was then suspended.
8


• Four other students were suspended as well,
including her brother John Tinker and Chris
Eckhardt.
• The students were told they could not return to
school until they agreed to remove their
armbands.
• The students returned after the Christmas break
without armbands, but in protest, they wore
black clothing for the remainder of the school
year — and filed a First Amendment lawsuit.

• The US Supreme Court found that school officials
could not censor student speech unless it disrupted
the educational process.
• Because wearing a black armband was not disruptive,
the court held that the right to free speech protected
the right of students to wear them.
• Wearing black arm bands as a sign of protest is
symbolic speech--"closely akin to pure speech."
• “Students do not shed their constitutional rights
to freedom of speech or expression at the
schoolhouse gate.”
10

Bethel School District v. Fraser

(478 U.S. 675 (1986))
• Matthew Fraser, a Senior High School
student, delivered a speech nominating
a fellow student for student body Vice
President.
• Approximately 600 high school students
attended the assembly.
• Fraser referred to his candidate in
terms of an elaborate, graphic, and
explicit sexual metaphor.
11
Bethel v. Fraser (cont’d)

• Part of Fraser's speech was as follows:
• I know a man who is rock hard – he's firm in his pants, he's
firm in his shirt, his character is firm – but most of all, his
belief in you the students of Bethel, is firm.
• Jeff Kuhlman is a man who takes his point and pounds it in.
• If necessary, he'll take an issue and nail it to the wall.
• He doesn't attack things in spurts – he drives hard, pushing
and pushing until finally – he succeeds.
• Jeff is a man who will go to the very end – even the climax,
for each and every one of you. So please vote for Jeff
Kuhlman, as he'll never come between us and the best our
school can be.
12


• Fraser was found to be in violation of several school policies
against disruptive behavior and the use of vulgar and
offensive speech.
• Fraser was suspended from school for three days as a result,
was prohibited from speaking at his graduation ceremony,
and his name was stricken from the ballot used to elect three
graduation speakers.
• Fraser nonetheless was selected by a write-in vote which
placed him second overall among the top three finishers,
although Bethel High School administrators refused to accept
the write-in vote as a valid result, and continued to deny
Fraser the opportunity to speak at graduation.
• The case reached the US Supreme Court on the question –
whether the school was correct in imposing such penalty.
13

• The US Supreme Court ruled that the school had not violated
Matthew’s right to free speech, and that schools do not have
to tolerate “lewd and obscene speech.”
• The US Supreme Court held, “The process of educating our
youth for citizenship in public schools is not confined to
books, the curriculum, and the civics class; schools must
teach by example the shared values of a civilized social
order…
• The schools, as instruments of the state, may determine that
the essential lessons of civil, mature conduct cannot be
conveyed in a school that tolerates lewd, indecent, or
offensive speech and conduct such as that indulged in by
this confused boy.”
14

Papish v. Missouri (U.S. case)

• 410 U.S. 667, 1973, Missouri
• Barbara Papish was a graduate
student of journalism at the Univ. of
Missouri.
• She published in the school paper a
cartoon depicting policemen raping
the Statue of Liberty.
• She was expelled for violating the
school rules (indecency).
15
16

Papish v. Missouri (cont’d)
• The Court ruled in favor of Papish

• The Court held that the mere
dissemination of ideas -- no matter
how offensive to good taste -- on a
university campus may not be shut
off in the name alone of
"conventions of decency."
• Ideas, per se, cannot be prohibited.
17
What is the extent of Free Speech?

• “Students’ rights to discuss matters
affecting their welfare or involving public
interest is not to be subjected to previous
restraint or subsequent punishment
unless there be a showing of a clear and
present danger to a substantive evil that
the state has a right to prevent.”
• “Thus, the utmost leeway and scope is
accorded the content of the placards
displayed or utterances made.”
• [Malabanan vs. Ramento, 129 SCRA 359
(1984).]
18

Malabanan vs. Ramento

• Officers of the Student Council of
Gregorio Araneta University held a rally
outside the area stated in their permit.
• They used offensive language severely
critical of the University authorities.
• The student leaders were suspended
for one year on the ground of oral
defamation and violation of the student
handbook.
19
Is the penalty correct?

• No. Although there was a violation of
the terms of the permit, still a 1 year
suspension is too much.
• The Supreme Court ruled that “the rally
did not materially disrupt classwork or
involved substantial disorder or
invasion of the rights of others.”
• Thus, the penalty was reduced to 1
week suspension.
20

Why was the penalty reduced?

• The Supreme Court explained that “student
leaders are hardly the timid, indifferent types.
They are likely to be assertive and dogmatic.
They would be ineffective if during a rally
they speak in the guarded language of the
academe.”
• We must take into account “the excitement
of the occasion, the propensity of speakers
to exaggerate, the exuberance of youth.”
• [Malabanan vs. Ramento, 129 SCRA 359
(1984).]
21
Clear & Present Danger Test

• The rights to peaceable assembly and free
speech are guaranteed to students of
educational institutions.
• Necessarily, their exercise to discuss matters
affecting their welfare or involving public
interest is not to be subjected to previous
restraint or subsequent punishment
unless there be a showing of a clear and
present danger to a substantive evil that
the state has a right to prevent. [Malabanan
vs. Ramento, 129 SCRA 359 (1984).]
22

Free Speech v. Academic Freedom

• Villar vs. TIP (April 17,1985)
• Student leaders held a rally outside the school.
• The student leaders with academic deficiencies
were refused enrollment in the next semester.
• The students appealed on the ground that the
school singled out the student leaders. They
argued that this is a violation of their exercise
of free speech and assembly.
• The school argued that under its academic
freedom, it is allowed to debar students with
academic deficiencies.
23
Free Speech v. Academic Freedom

• Villar vs. TIP (April 17,1985)
• The academic freedom enjoyed by "institutions of higher
learning" includes the right to set academic standards to
determine under what circumstances failing grades suffice
for the expulsion of students.
• Once it has done so, however, that standard should be
followed meticulously.
• It cannot be utilized to discriminate against those
students who exercise their constitutional rights to
peaceable assembly and free speech.
• If it does so, then there is a legitimate grievance by the
students thus prejudiced, their right to the equal protection
clause being disregarded.
24

Free Speech on campus

• Hazelwood School District v. Kuhlmeier
• 484 U.S. 260 (1988)
• The case concerned the censorship of two articles
in The Spectrum, the student newspaper
of Hazelwood East High School in St. Louis County,
Missouri, 1983.
• When the school principal removed an article
concerning divorce and another concerning teen
pregnancy, the student journalists sued, claiming that
their First Amendment rights had been violated.
• A lower court sided with the school, but its decision
was overturned by the U.S. Court of Appeals for the
Eighth Circuit, which sided with the students.
25
Free Speech on campus

• Hazelwood School District v. Kuhlmeier 484 U.S. 260 (1988)
• In a 5–3 decision, the Supreme Court overturned
the circuit court's decision, determining that school
administrators could exercise prior restraint of
school-sponsored expression, such as curriculum-
based student newspapers and assembly
speeches, if the censorship is "reasonably related
to legitimate pedagogical concerns".
• School-sponsored student newspapers will not be
presumed to be operating as public forums for
student expression absent evidence indicating
otherwise.
26

FREE SPEECH NOT ABSOLUTE

• “The right of the students to free
speech in school premises is not
absolute.
• The right to free speech must
always be applied in light of the
special characteristics of the
school environment.”
• [Miriam College Foundation vs. Court
of Appeals, December 15, 2000]
27
Miriam College vs. C.A.

• Chi-Ro (school paper, Sept.-Oct ’94)
• “Libog at iba pang mga tula”
• Parents and students complained
• The school, after investigation, expelled
some staff members and suspended
others.
• Q: May campus journalists be punished as
a result of what they had published?
28

The nature of the articles

• Kaskas, written in Tagalog, treats of the
experience of a group of young, male, combo
players who went to see a bold show in a
place called "Flirtation".
• The articles described in detail the group sex
that followed.
• In the foreword which the students entitled
"Foreplay", the students justified the
Magazine's erotic theme arguing: “hindi ito
garapal” and ending:"Dahil para saan pa
ang libog kung hindi ilalabas?"
29
Liability of Campus Journalists

• “A student shall not be expelled
or suspended solely on the
basis of articles he or she has
written, or on the basis of the
performance of his or her duties
in the student publication.” (Sec.
7, RA 7079)
30

Campus Journalists not Immuned

• “Section 7 of the Campus Journalism Act
means that the school cannot suspend or
expel a student solely on the basis of the
articles he or she has written, except when
such article materially disrupt class work or
involve substantial disorder or invasion of
the rights of others.”
• The Supreme Court affirmed the expulsion.
31
WHAT IS CENSORSHIP?
• Censorship is that officious functionary of
the repressive government who tells the
citizen that he may speak only if allowed to
do so, and no more and no less than what
he is permitted to say on pain of
punishment should he be so rash as to
disobey.
• Censorship may come in the form of prior
restraint or subsequent punishment.
• Chavez v. Gonzales (Feb. 15, 2008)
32

The NTC issued a warning that it will suspend,

revoke, and/or cancel the licenses of radio and
television stations should they air the Garci
Tape. Is this a form of censorship?
• YES. This is definitely a form of prior
restraint. The license or authorization is the
life of every media station. If withheld from
them, their very existence is lost. Surely, no
threat could be more discouraging to them
than the suspension or revocation of their
licenses.
33
WHY IS THE NTC WARNING

CONSIDERED CENSORSHIP?
• It must be stressed that the evils to be prevented are not the
censorship of the press merely, but any action of the
government by means of which it might prevent such free
and general discussion of public matters as seems
absolutely essential to prepare the people for an intelligent
exercise of their rights as citizens.
• There is logic in the proposition that the liberty of the press
will be rendered a "mockery and a delusion" if, while every
man is at liberty to publish what he pleases, the public
authorities might nevertheless punish him for harmless
publications.
• In this regard, the fear of subsequent punishment has the
same effect as that of prior restraint.
34

WHEN IS PRIOR RESTRAINT ALLOWED?

• 1. Pornography [Gonzales v. Kalaw-Katigbak, No. L-69500,
22 July 1985, 137 SCRA 717.]
• 2. False or misleading advertisement [Pharmaceutical
and Health Care Association of the Philippines v. Health
Secretary Francisco T. Duque III, G.R. No. 173034, 9
October 2007];
• 3. Advocacy of imminent lawless action [Eastern
Broadcasting Corporation v. Dans, No. L-59329, 19 July
1985, 137 SCRA 628] and
• 4. Danger to national security [id.]
• All other expression is not subject to prior restraint.
• Justice Antonio Carpio CONCURRING OPINION in Chavez
v. Gonzales (Feb. 15, 2008)
35
DISTINGUISH CONTENT-BASED VS.

CONTENT-NEUTRAL RESTRICTIONS
• A content-based regulation is based on the subject matter
of the utterance or speech. It is the communicative impact
of the speech or the reader's possible reaction to the ideas
expressed that is being regulated.
• If the restriction is not aimed at the message or idea of the
expression, it is content-neutral even if it burdens
expression.
• A content-neutral regulation, on the other hand, is merely
concerned with the incidents of the speech; or merely
controls the time, place or manner of the speech under
well-defined standards, independent of the content of the
speech. [Soriano v. Laguardia, G.R. Nos. 164785, 29 April
2009]
36

WHAT IS THE STRICT SCRUTINY TEST?
• The strict scrutiny test is applied to content-based

regulations of speech and requires that laws "be
narrowly tailored to promote a compelling Government
interest".
• This test calls for "the least restrictive alternative"
necessary to accomplish the objective of the regulation.
• The test is very rigid because it is the communicative
impact of the speech that is being regulated.
• The regulation goes into the heart of the rationale for
the right to free speech; that is, that there should be no
prohibition of speech merely because public officials
disapprove of the speaker's views. [Soriano v.
Laguardia, G.R. Nos. 164785, 29 April 2009]
37
WHAT IS THE INTERMEDIATE TEST?
• Intermediate test is employed, which requires that the

regulation be narrowly drawn to pursue a substantial or
significant government interest, provided that the
regulation of the time, place, or manner of speech does
not mask discrimination based on the communicative
content of the speech.
• The test is not as rigid as that used in content-based
regulation, as the regulation does not seek to regulate
the communicative impact of the speech, but only its
incidents of time, place, or manner of expression.
• [Soriano v. Laguardia, G.R. Nos. 164785, 29 April
2009]
38

Soriano v. Laguardia,
G.R. Nos. 164785, 29 April 2009
• Eli Soriano has a tv show on primetime where he tackles
religious topics. In one episode he made a rant and said:
• Lehitimong anak ng demonyo; sinungaling;
• Gago ka talaga Michael, masahol ka pa sa putang babae o di
ba. Yung putang babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas, o di ba!
• O, masahol pa sa putang babae yan. Sabi ng lola ko masahol
pa sa putang babae yan.
• Sobra ang kasinungalingan ng mga demonyong ito . . .
• The MTRCB imposed a 3-month suspension on Eli Soriano
and his show. He was not allowed to appear on tv.
• Is this a form of censorship?
39
Is this a prohibited form of censorship?

• A: NO. The suspension is in the form of permissible
administrative sanction or subsequent punishment for the
offensive and obscene remarks he uttered on the evening of
August 10, 2004 in his television program, Ang Dating Daan.
• It is a sanction that the MTRCB may validly impose under its
charter without running afoul of the free speech clause.
• The sanction imposed is not per se for petitioner's exercise
of his freedom of speech via television, but for the indecent
contents of his utterances in a "G" rated TV program.
• The suspension sought to penalize past unprotected
speech made on prime-time "G" rated TV program; it does
not bar future speech of petitioner in other television
programs; it is a permissible subsequent administrative
sanction. [Soriano v. Laguardia, G.R. Nos. 164785, 29 April
2009]
40

Tests for State Interference
1. Clear and Present Danger

2. Balancing of Interest
3. Dangerous Tendency
Censorship:
-- Prior Restraint
-- Subsequent Punishment
41
Q: What are the tests for valid

governmental interference to
freedom of expression?
a) Clear and present danger test
QUESTION: Whether the words are used in
such circumstances and are of such a
nature as to create a clear and present
danger that they will bring about the
substantive evils that Congress has a right
to prevent. It is a question of proximity and
degree (Schenck v. US, 249 US 47, 1919)
42

EMPHASIS: The danger created must not

only be clear and present but also
traceable to the ideas expressed.
(Gonzales v. COMELEC,
G.R. No. L-27833, April 18, 1969)
Note: This test has been adopted by our

SC, and is most applied to cases
involving freedom of expression.
43
b) Dangerous tendency test

QUESTION: Whether the speech
restrained has a rational tendency to
create the danger apprehended, be it
far or remote, thus government
restriction would then be allowed.
It is not necessary though that evil is
actually created for mere tendency
towards the evil is enough.
44

c) Balancing of interest test

QUESTION: which of the two
conflicting interests (not involving
national security crimes) demands the
greater protection under the particular
circumstances presented: (Gonzales
v. COMELEC, G.R. No. L-27833, April
18, 1969)
45
i. When particular conduct is

regulated in the interest of public
order
ii. And the regulation results in an

indirect, conditional and partial
abridgement of speech.
46

d) O’Brien test
QUESTION: in situations when
“speech” and “non-speech” elements
are combined in the same course of
conduct, whether there is a
sufficiently important governmental
interest that warrants regulating the
non-speech element, incidentally
limiting the “speech” element.
47
A government regulation is valid if:
i. It is within the constitutional power of

the government;
ii. In furtherance of an important or
substantial governmental interest;
iii. Governmental interest is unrelated to the
suppression of free expression; and
iv. The incidental restriction on the freedom
is essential to the furtherance of that
interest. (US v. O’Brien, 391 US 367,
1968; SWS v. COMELEC, G.R. 147571,
May 5, 2001)
48

Q: What is "commercial speech"? Is it entitled to

constitutional protection? What must be shown in order
for government to curtail "commercial speech"? Explain.
A:
Commercial speech is communication which involves
only the commercial interests of the speaker and the
audience such as advertisements. (Black’s Law Dictionary,
9th Ed.,P. 1529)
Commercial speech is entitled to constitutional
protection. (Ayer Productions Pty., Ltd Vs Capulong, 160
Scra 861.)
Commercial speech may be required to be submitted to a
government agency for review to protect public interest
by preventing false or deceptive claims. (Pharmaceutical
And Health Care Association Of The Philippines Vs. Duque,
535 Scra 265.)
49
Problem: The motion picture - Kapit sa Patalim was

classified by the Board of Review for Motion Pictures
as "For Adults Only“ on the ground of obscenity? Is
the Board correct?
• A: NO. 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.
• The Board’s perception of what constitutes obscenity
appears to be unduly restrictive.
• This Court concludes then that there was an abuse of
discretion. Nonetheless, there are not enough votes to
maintain that such an abuse can be considered grave.
• Gonzales v. Kalaw-Katigbak, July 22, 1985
50

What are the tests for obscenity?

• A:
• (a) whether to the average person, applying
contemporary standards would find the work, taken
as a whole, appeals to the prurient interest;
• (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by the applicable state law; and
• (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
• [Pita v. Court of Appeals, G.R. No. 80806, October
5, 1989, 178 SCRA 362, 368.]
51
Is mere possession of nude and lewd

magazines illegal?
• A: NO. Mere possession of obscene materials, without
intention to sell, exhibit, or give them away, is not punishable
under Article 201, considering the purpose of the law is to
prohibit the dissemination of obscene materials to the public.
• No one will be subject to prosecution for the sale or exposure
of obscene materials unless these materials depict or
describe patently offensive "hard core" sexual conduct.
• Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted,
actual or simulated; and (b) patently offensive
representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals. [Fernando v.
Court of Appeals, December 6, 2006]
52

What is LIBEL?
• (a) the allegation of a discreditable
act or condition concerning another;
• (b) publication of the charge;
• (c) identity of the person defamed;
and
• (d) existence of malice.
• [Article 354 of the RPC]
53
Elements of LIBEL?
• Four elements constitute the crime of

libel, namely:
• (a) defamatory imputation tending to
cause dishonor, discredit or contempt;
• (b) malice, either in law or in fact;
• (c) publication; and
• (d) identifiability of the person defamed.
54

What are the means by

which libel is committed?
• Libel is committed by means of
writing, printing, lithography,
engraving, radio, phonograph,
painting, theatrical exhibition,
cinematographic exhibition, or
any similar means. (Art. 355,
RPC).
55
Cyber Libel
• Defamatory statements made on the internet is
now deemed libel, even if the internet is not a
medium expressly enumerated in the law.
• Internet is subsumed in the phrase “any
similar means.”
• “Publication,” which is one of the requisites, is
defined as the “communication of the
defamatory matter to some third person or
persons.”
• The internet is a means of communicating.
• (Disini v. Sec of Justice, GR No. 203335, 22
April 2014)
56

Q: Are the provisions of the Cyber Crime Law on cyber

libel constitutional?
A: Yes.
Libel is not a constitutionally protected speech and the
government has an obligation to protect private individuals
from defamation.
Indeed, cyber libel is actually not a new crime since Art.
353, in relation to Art. 355 of the penal code, already
punishes it.
Generally, penal statutes cannot be invalidated on the
ground that they produce a “chilling effect,” since by their
very nature, they are intended to have an in terrorem effect
(benign chilling effect) to prevent a repetition of the offense
and to deter criminality. (Disini v. Secretary of Justice
G.R. No. 203335 February 11, 2014)
57
Is defamation made in a television

program considered libel?
• Yes. Defamation made in a television

program is libel.
• While the medium of television is not
expressly mentioned among the means
specified in the law, it easily qualifies
under the general provision --�or any
similar means. (People vs. Casten, et al., CA-
G.R. No. 07924-CR, December 13, 1974)
58

QUESTION:
Nestor posted on Facebook that Juan Dela Cruz, a
married person, has an illicit affair with Maria.
Dexter liked this post and commented: “Yes! This is
true! What an immoral thing to do?!”
This post was likewise liked by 23 people.
Juan Dela Cruz filed a case for online libel against
Nestor, Dexter and 23 other people who liked the
post using as his basis Sec. 5 of the Cybercrime
law which penalizes any person who willfully abets or
aids in the commission of any of the offenses
enumerated in the said law.
Is this provision of the law constitutional?
59
ANSWER:
A: No. The terms “aiding or abetting” constitute broad sweep that
generates chilling effect on those who express themselves through
cyberspace posts, comments, and other messages.
Its vagueness raises apprehension on the part of internet users
because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way.
The terms “aiding or abetting” constitute broad sweep that
generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.
Hence, Sec. 5 of the cybercrime law that punishes “aiding or
abetting” libel on the cyberspace is a nullity.
But Nestor, the author, is still liable for the defamatory words he
posted. (Disini v. Secretary of Justice G.R. No. 203335 February
11, 2014)
60

Rules on Venue
• 1. Whether the offended party is a public official or
a private person, the criminal action may be filed
in the Court of First Instance of the province or city
where the libelous article is printed and first
published.
• 2. If the offended party is a private individual, the

criminal action may also be filed in the Court of
First Instance of the province where he actually
resided at the time of the commission of the
offense.
61
Rules on Venue
• 3. If the offended party is a public officer whose
office is in Manila at the time of the commission of
the offense, the action may be filed in the Court of
First Instance of Manila.
• 4. If the offended party is a public officer

holding office outside of Manila, the action may
be filed in the Court of First Instance of the province
or city where he held office at the time of the
commission of the offense.
62

BONIFACIO V. GIMENEZ
G.R. No. 184800, 5 May 2010
• Gimenez, on behalf of the Yuchengco Family and of

the Malayan Insurance Co., Inc. (Malayan), FILED a
criminal complaint for 13 counts of libel under Article
355 against officers and trustees of Parents Enabling
Parents Coalition, Inc. (PEPCI).
• PEPCI was formed by a large group of disgruntled plan
holders of Pacific Plans, Inc. (PPI), which was indirectly
owned by the Yuchengco Group of Companies (YGC).
• PEPCI sought to provide a forum by which the plan
holders could seek redress by maintaining a website on
the internet under the address of
www.pepcoalition.com
63
BONIFACIO V. GIMENEZ
G.R. No. 184800, 5 May 2010
• Gimenez alleges that he accessed the website in Makati

and found the website to contain thirteen articles containing
highly derogatory statements and false accusations against
the Yuchengco Family, YGC, and particularly, Malayan.
• The Makati City Prosecutor’s Office, finding probable cause,
filed thirteen (13) separate Informations in the Makati RTC.
However, on appeal, the Secretary of Justice, reversed the
finding of probable and reasoned that the crime of “internet
libel” was non-existent.
• The accused then filed a Motion to Quash the Information
on the grounds that it failed to vest jurisdiction on the Makati
RTC.
64

IS ACCESS = VENUE?
• The Amended Information stated that the offending article
“was first published and accessed by the complainant in
Makati City.”
• The Supreme Court ruled: “For defamatory material

appearing on a website on the internet, there would be
no way of determining the situs of its printing and first
publication.”
• Chaos would ensue in situations where the website’s
author or writer, a blogger or anyone who posts messages
therein could be sued for libel anywhere in the Philippines
that the private complainant may have allegedly accessed
the offending website.
65
Who can sue for LIBEL?

• RPC (Article 360). No criminal
action for defamation which consists
in the imputation of a crime which
cannot be prosecuted de oficio shall
be brought except at the instance of
and upon complaint expressly filed
by the offended party.
66

Who can sue for LIBEL?

• The rule in libel is that the action must be brought
by the person against whom the defamatory
charge has been made. For recovery in defamation
cases, it is necessary that the publication be "of and
concerning the plaintiff."
• Even when a publication may be clearly defamatory
as to somebody, if the words have no personal
application to the plaintiff, they are not actionable by
him.
• If no one is identified, there can be no libel
because no one's reputation has been injured.
67
Can there be a class suit for

Libel? Newsweek v. IAC (1986)
• Newsweek published an article entitled "Island of
Fear“ depicting Negros Province as a place
dominated by wealthy landowners and sugar
planters who exploited the impoverished and
underpaid sugarcane workers and brutalized /killed
them with impunity.
• The sugar cane farmers sued the paper for
damages and argued that the article showed a
deliberate and malicious use of falsehood intended
to expose them to public ridicule, discredit and
humiliation in the Philippines and abroad.
68

No Class Suit For Libel

• The SC Ruled: “Where the defamation is alleged to
have been directed at a group or class, it is essential
that the statement must be so sweeping or all-
embracing as to apply to every individual in that group
or class, or sufficiently specific so that each individual
in the class or group can prove that the defamatory
statement specifically pointed to him, so that he can
bring the action separately, if need be.”
• There is no class suit for libel because each of the
plaintiffs has a separate and distinct reputation in
the community. They do not have a common or
general interest in the subject matter of the
controversy. [Newsweek v. IAC (1986)]
69
Is there a Group Libel?

Islamic Da’wah Council v. MVRPS
Publication (2003)
• The Tabloid BULGAR published the following article:
• "ALAM BA NINYO?
• Na ang mga baboy at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim?
• Para sa kanila ang mga ito ay isang sagradong bagay.
Hindi nila ito kailangang kainin kahit na sila pa ay
magutom at mawalan ng ulam sa tuwing sila ay
kakain. Ginagawa nila itong Diyos at sinasamba pa
nila ito sa tuwing araw ng kanilang pangingilin lalung-
lalo na sa araw na tinatawag nilang 'Ramadan'."
70

Islamic Da’wah Council v.

MVRPS Publication (2003)
• The complaint alleged that the libelous statement was
insulting and damaging to the Muslims; that these
words alluding to the pig as the God of the Muslims
was not only published out of sheer ignorance but with
intent to hurt the feelings, cast insult and disparage
the Muslims and Islam, as a religion.
• That on account of these libelous words Bulgar
insulted not only the Muslims in the Philippines but the
entire Muslim world, especially every Muslim
individual in non-Muslim countries.
71
Islamic Da’wah Council v.

MVRPS Publication (2003)
• MVRS PUBLICATIONS, INC., publisher of BULGAR,
in defense, contended that the article did not mention
respondents as the object of the article and, that the
article was merely an expression of belief or opinion
and was published without malice nor intention to
cause damage, prejudice or injury to Muslims.
• The trial court dismissed the complaint holding
that the plaintiffs failed to establish their cause of
action since the persons allegedly defamed by
the article were not specifically identified.
72

Insulting words are not libelous per se

• The SC ruled: “It must be stressed that words
which are merely insulting are not
actionable as libel or slander per se, and
mere words of general abuse however
opprobrious, ill-natured, or vexatious, whether
written or spoken, do not constitute a basis for
an action for defamation in the absence of an
allegation for special damages.
• The fact that the language is offensive to
the plaintiff does not make it actionable by
itself.
73
There is no Group Libel

• There was no fairly identifiable person who was
allegedly injured by the Bulgar article. Since the
persons allegedly defamed could not be identifiable,
the muslims have no individual causes of action;
hence, they cannot sue for a class allegedly
insulted.
• There is no injury to the reputation of the individual
Muslims who constitute this community that can give
rise to an action for group libel. Each reputation is
personal in character to every person.
• Together, the Muslims do not have a single common
reputation that will give them a common or general
interest in the subject matter of the controversy.
74

Who are liable for LIBEL?
• Art. 360. Persons responsible. — Any person who

shall publish, exhibit, or cause the publication
or exhibition of any defamation in writing or by
similar means, shall be responsible for the
same.
• The author or editor of a book or pamphlet, or the
editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible
for the defamations contained therein to the same
extent as if he were the author thereof.
75
Cristy Fermin v. People (2008)

• In Fermin v. People [G.R. No. 157643, March 28,
2008, 550 SCRA 132.],Cristy Fermin argued that to
sustain a conviction for libel under Article 360 of the
Code, it is mandatory that the publisher knowingly
participated in or consented to the preparation
and publication of the libelous article.
• She also averred that she had adduced ample
evidence to show that she had no hand in the
preparation and publication of the offending article,
nor in the review, editing, examination, and approval
of the articles published in Gossip Tabloid.
• Is she correct?
76

Cristy Fermin v. People (2008)

• NO. The Supreme Court struck down her
erroneous theory and ruled that Cristy
Fermin, who was not only the Publisher of
Gossip Tabloid but also its President and
Chairperson, could not escape liability by
claiming lack of participation in the
preparation and publication of the libelous
article.
• The law clearly holds her liable, as if she
was the author thereof.
77
Tulfo v. People (2008)

• In Tulfo v. People [G.R. Nos. 161032, September
16, 2008, 565 SCRA 283] therein petitioners, who
were Managing Editor, National Editor of
Remate publication, President of Carlo
Publishing House, and one who does
typesetting, editing, and layout of the page,
claim that they had no participation in the editing or
writing of the subject articles which will hold them
liable for the crime of libel and, thus, should be
acquitted.
• Are they correct?
78

Tulfo v. People (2008)

• No. An editor or manager of a newspaper, who has
active charge and control over the publication, is
held equally liable with the author of the libelous
article.
• This is because it is the duty of the editor or
manager to know and control the contents of the
paper, and interposing the defense of lack of
knowledge or consent as to the contents of the
articles or publication definitely will not prosper.
• The law clearly holds her liable, as if she was the
author thereof.
79
Possible Defenses in Libel

• (a) Privileged communications;
• (b) Fair comment on matters of public interest;
• (c) Fair comment on qualifications of
candidates for public office;
• (d) Apology or retraction;
• (e) Rectification;
• (f) Proof of truth; and
• (g) Self-defense.
80

Privileged Communication
• Private Communication made by any

person to another in the performance of any
legal, moral, or social duty.
• Fair and True Report, made in good faith,
without any comments or remarks, of any
acts performed by public officers in the
exercise of their functions.
• Article 354, Revised Penal Code
81
Privileged Communication
• The enumeration under Art. 354 is
not an exclusive list of qualifiedly
privileged communications since fair
commentaries on matters of
public interest are likewise
privileged.
• Flor v. People, G.R. No. 139987. March 31, 2005.
82

Criticisms of Public Officials

• The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses
of officialdom.
• Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the
balm of a clear conscience.
• A public officer must not be too thin-skinned with
reference to comment upon his official acts. US v.
Bustos, 37 Phil. 731.
83
Villanueva v. Inquirer (2009)

• Hector Villanueva was one of the mayoralty
candidates in Bais, Negros Oriental during the May
11, 1992 elections.
• Two days before the elections, the Manila Bulletin
published a story stating that the Comelec has
disqualified Villanueva as a candidate for mayor of
Bais City for having been convicted in three
administrative cases for grave abuse of authority
and harassment in 1987,
• A day before the elections, Inquirer also came out
with a similar story.
84


• Hector Villanueva lost in the elections.
• He sued the Inquirer and Manila Bulletin as well
as their publishers and editors for damages
before the RTC of Bais City.
• He alleged that the articles were "maliciously
timed" to defeat him.
• He claimed he should have won by landslide, but
his supporters reportedly believed the news items
distributed by his rivals and voted for other
candidates.
• The trial court found the Inquirer liable for LIBEL.
85

• The SC reversed the decision and ruled: “the
publications or articles in question are neither
private communications nor true reports of official
proceedings without any comments or remarks.
• However, this does not necessarily mean that the
questioned articles are not privileged.”
• “The enumeration under Art. 354 is not an
exclusive list of qualified privileged
communications since fair commentaries on
matters of public interest are likewise privileged
and constitute a valid defense in an action for
libel or slander.”
86


• The SC Ruled: “Here, there is no denying that the
questioned articles dealt with matters of public
interest. These are matters about which the
public has the right to be informed, taking into
account the very public character of the election
itself.”
• “For this reason, they attracted media mileage and
drew public attention not only to the election itself
but to the candidates.”
• “As one of the candidates, petitioner consequently
assumed the status of a public figure.”
87
Private person, public event

• The SC Ruled: “But even assuming a person would not
qualify as a public figure, it would not necessarily
follow that he could not validly be the subject of a
public comment.”
• “If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a private
individual is involved or because in some sense the
individual did not voluntarily choose to become involved.”
• “The public's primary interest is in the event; the public
focus is on the conduct of the participant and the content,
effect and significance of the conduct, not the participant's
prior anonymity or notoriety.”
88

Inaccurate Reports: Not Libel

• The SC Ruled: “Nevertheless, even assuming that the
contents of the articles turned out to be false, mere
error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable in
any scheme of truly free expression and debate.
• “Consistent with good faith and reasonable care, the press
should not be held to account, to a point of suppression, for
honest mistakes or imperfections in the choice of language.”
• “There must be some room for misstatement of fact as well
as for misjudgment. Only by giving them much leeway and
tolerance can they courageously and effectively function as
critical agencies in our democracy.” [Villanueva v. Inquirer]
89
Binay v. DOJ (2006)

• In the April 15-21, 2001 issue of Pinoy Times
Special Edition, an article entitled “ALYAS ERAP
JR.” was published regarding the alleged
extravagant lifestyle of the Binays and the assets
that they acquired while in public office. Paragraph
25 stated:
• “Si Joanne Marie Bianca, 13 ang sinasabing
ampong anak ng mga Binay, ay bumibili ng
panty na nagkakahalaga ng P1,000 ang isa,
ayon sa isang writer ni Binay. Magarbo ang
pamumuhay ng batang ito dahil naspoiled
umano ng kanyang ama.”
90

Binay v. DOJ (2006)

• Elenita S. Binay, mother of the minor Joanna Marie
Bianca, filed a complaint for libel against the
publisher and writer of the article.
• The Fiscal found probable cause but on appeal, the
DOJ dismissed the case on the ground that there is
nothing libelous about the article.
• The CA affirmed on the ground that the Binays are
public figures and this is a reasonable criticism of a
public official.
• The SC reversed the decision and found probable
cause for Libel.
91
Binay v. DOJ (2006)

• The SC Ruled that the subject article is defamatory.
• It is opprobrious, ill-natured, and vexatious as it
has absolutely nothing to do with petitioner's
qualification as a mayoralty candidate or as a
public figure.
• It appears that private respondents only purpose in
focusing on Joannas status as an adopted child and
her alleged extravagant purchases was to malign
her before the public and to bring her into disrepute.
• This is a clear libel as it invades her right to privacy.
92

Binay v. DOJ (2006)

• The SC Ruled that the subject article is not
privileged. There was no legal, moral, or social
duty in publishing Joanna's status as an adopted
daughter.
• Neither is there any public interest respecting her
purchases of panties worth P1,000.00. Whether she
indeed bought those panties is not something that the
public can afford any protection against.
• It is obvious that the only motive in inserting
paragraph 25 in the subject article is to embarrass
Joanna before the reading public.
93
• Q: Can a senator be held liable for libel for speeches

made in public outside of congress and during
media interviews?
• A: YES. Parliamentary non-accountability cannot be
invoked when the lawmaker's speech or utterance is
made outside sessions, hearings or debates in
Congress, extraneous to the '"due functioning of the
(legislative) process”.
• To participate in or respond to media interviews is not an
official function of any lawmaker; it is not demanded by his
sworn duty nor is it a component of the process of enacting
laws.
• The privilege arises not because the statement is made by a
lawmaker, but because it is uttered in furtherance of
legislation. [Senator Antonio Trillanes vs. Hon. Evangeline
Castillo-Marigomen, G.R. No. 223451, March 14, 2018]
94

• Q: Section 36.8 of RA 9189 as amended by RA 10590

prohibits partisan political activity for all Filipinos
residing abroad within 30 days of any absentee
voting? Is this constitutional?
• A: NO. The questioned provision is clearly a restraint on
one’s exercise of free speech and expression, in the
form of engagement in partisan political activities, before
they are spoken or made.
• On its face, the challenged law provides for an absolute
and substantial suppression of speech as it leaves no
ample alternative means for one to freely exercise his or
her fundamental right to participate in partisan political
activities.
• [Nicolas-Lewis v. Commission on Elections,
(G.R. No. 223705, 14 August 2019]
95
Q: May the COMELEC prohibit

the posting of decals and
stickers on "mobile" places,
public or private, such as on
a private vehicle, and limit
their location only to the
authorized posting areas that
the COMELEC itself fixes?
Explain.
96

A: According to Adiong v. COMELEC G.R. No.

103956, March 31, 1992, the prohibition is
unconstitutional.
It curtails the freedom of expression of
individuals who wish to express their
preference for a candidate by posting decals
and stickers on their cars and to convince
others to agree with them.
It is also overbroad, because it encompasses
private property and constitutes deprivation of
property without due process of law. Ownership
of property includes the right to use.
The prohibition is censorship, which cannot be
justified. (2003 Bar Question)
97
QUESTION:
In 2013, the COMELEC promulgated Resolution 9615
providing rules that would implement Sec 9 of RA 9006 or the
Fair Elections Act.
One of the provisions of the Resolution provide that the
posting of any election propaganda or materials during the
campaign period shall be prohibited in public utility vehicles
(PUV) and within the premises of public transport terminals.
1 UTAK, a party-list organization, questioned the prohibition
as it impedes the right to free speech of the private owners of
PUVs and transport terminals.
Issue: W/N the COMELEC may impose the prohibition on
PUVs and public transport terminals during the election
pursuant to its regulatory powers delegated under Art IX-C,
Sec 4 of the Constitution?
98

ANSWER:
No. The COMELEC may only regulate the franchise or
permit to operate and not the ownership per se of PUVs
and transport terminals.
The posting of election campaign material on vehicles
used for public transport or on transport terminals is not
only a form of political expression, but also an act of
ownership – it has nothing to do with the franchise or
permit to operate the PUV or transport terminal.
It unduly infringes on the fundamental right of the people to
freedom of speech.
Central to the prohibition is the freedom of individuals such as
the owners of PUVs and private transport terminals to express
their preference, through the posting of election campaign
material in their property, and convince others to agree with
them. [1-United Transport Koalisyon v. Commission on
Elections, G.R. No. 206020, April 14, 2015]
99
QUESTION:
On February 21, 2013, the Diocese of Bacolod City posted
two (2) tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6') by ten feet (10') in size. They were
posted on the front walls of the cathedral within public view.
The first tarpaulin contains the message "IBASURA RH Law"

referring to the Reproductive Health Law of 2012 or Republic
Act No. 10354.
The second tarpaulin contains the heading "Conscience Vote"

and lists candidates as either "(Anti-RH) Team Buhay" with a
check mark, or "(Pro-RH) Team Patay" with an "X" mark. The
electoral candidates were classified according to their vote on
the adoption of the RH Law.
100

QUESTION:
Those who voted for the passing of the law were classified by
petitioners as comprising "Team Patay," while those who
voted against it form "Team Buhay".
101
QUESTION:
On February 22, 2013, the Election Officer of Bacolod City
issued a Notice to Remove Campaign Materials addressed to
the Bishop of the Diocese of Bacolod City. The election officer
ordered the tarpaulin's removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615
provides for the size requirement of tarpulins or campaign
posters of NOT MORE than two feet (2') by three feet (3').
The Diocese of Bacolod City replied that it is not a candidate

for the election, and that the tarpaulin/poster of Team Buhay
and Team Patay is not an election propaganda. It argued that
the poster/tarpaulin is an exercise of free speech and free
expression and forms part of its private property. Thus, it
cannot be regulated by the COMELEC. Decide.
102

ANSWER:
The Diocese of Bacolod City is not a candidate. Neither does
it belong to any political party. COMELEC does not have the
authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this
case.
The law and COMELEC Rules regulating the posting of
campaign materials only apply to candidates and political
parties, and the Diocese of Bacolod City is neither of the two.
Regulation of speech in the context of electoral

campaigns made by persons who are not candidates or
who do not speak as members of a political party is
unconstitutional.
Diocese of Bacolod v. Commission on Elections, G. R. No.
205728, January 21, 2015.
103
Q1 (92) – Congress passes a law prohibiting

television stations from airing any commercial
advertisement which promotes tobacco or in any
way glamorizes the consumption of tobacco
products.
This legislation was passed in response to

findings by the Department of Health about the
alarming rise in lung diseases in the country. The
World Health Organization has also reported that
U.S. tobacco companies have shifted marketing
efforts to the Third World due to dwindling sales in
the health-conscious American market.
104

Cowboy Levy’s, a jeans company, recently

released an advertisement featuring model Richard
Burgos wearing Levy’s jackets and jeans and
holding a pack of Marlboro cigarettes.
The Asian Broadcasting Network (ABN), a

privately owned television station, refuses to air the
advertisement in compliance with the law.
a) Assume that such refusal abridges the

freedom of speech. Does the constitutional
prohibition against the abridgement of the freedom
of speech apply to acts done by ABN, a private
corporation? Explain.
105
b) May Cowboy Levy’s, a private corporation,

invoke the free speech guarantee in its favor?
Explain.
c) Regardless of your answers above, decide the

constitutionality of the law in question.
Answer:
a) The constitutional prohibition against the

freedom of speech does not apply to ABN, a private
corporation. As stated in Hudgens vs. National Labor
Relations Board, 424 U.S. 507, the constitutional
guarantee of freedom of speech is a guarantee only
against abridgement by the government. It does not
therefore apply against private parties.
106

Alternative Answer:
Since ABN has a franchise, it may be

considered an agent of the government by
complying with the law and refusing to air the
advertisement, it aligned itself with the
government. Thus it rendered itself liable for
a lawsuit which is based on abridgment of the
freedom of speech. Under Article 32 of the
Civil Code, even private parties may be liable
for damages for impairment of the freedom of
speech.
107
b) Cowboy Levy’s may invoke the constitutional

guarantee of freedom of speech in its favor.
In First National Bank of Boston vs, Bellotti, 435

U.S. 765, it was ruled that this guarantee
extends to corporations.
In Virginia State Board of Pharmacy vs. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748,
it was held that this right extends to commercial
advertisements.
In Ayer Productions Pty. Ltd. vs. Capulong, 160
SCRA 861, the Supreme Court held that even if
the production of a film is a commercial activity
that is expected to yield profits, it is covered by
the guarantee of freedom of speech.
108

c) The law is constitutional.
It is a valid exercise of police power, because

smoking is harmful to health.
In Posadas de Puerto Rico Associates vs. Tourism
Company of Puerto Rico, 478 U.S. 328, it was ruled
that a law prohibiting certain types of
advertisements is valid if it was adopted in the
interest of the health, safety, and welfare of the
people.
The law in question was enacted on the basis of the
legislative finding that there is a need to protect
public health, because smoking causes lung
diseases. Cowboy Levy’s has not overthrown this
finding.
109
Q3(2) (96) – On the first day of the trial of a rape-

murder case where the victim was a popular TV star,
over a hundred of her fans rallied at the entrance of
the courthouse, each carrying a placard demanding
the conviction of the accused and the imposition of
the death penalty on him. The rally was peaceful
and did not disturb the proceedings of the case.
a) Can the trial court order the dispersal of the

rallyists under pain of being punished for contempt
of court, if they fail to do so? Explain.
b) If instead of a rally, the fans of the victim wrote

letters to the newspaper editors demanding the
conviction of the accused, can the trial court punish
them for contempt? Explain.
110

Suggested Answer:
Yes, the trial court can order the dispersal of

the rally under pain of being cited for contempt.
The purpose of the rally is to attempt to influence
the administration of justice.
As stated in People vs. Flores, 239 SCRA 83,
any conduct by any party which tends to directly or
indirectly impede, obstruct or degrade the
administration of justice is subject to the contempt
powers of the court.
111
No, the trial court cannot punish for

contempt the fans of the victim who wrote
letters to the newspaper editors asking for
the conviction of the accused.
Since the letters were not addressed to the

judge and the publication of the letters
occurred outside the court, the fans cannot be
punished in the absence of a clear and
present danger to the administration of
justice.
112

Q: COMELEC Resolution No. 9674 directed SWS and Pulse

Asia, as well as "other survey firms” to submit to
COMELEC the names of all commissioners and payors of
all pre-election surveys they published. Is this
Constitutional?
A: YES. While it does regulate expression (i.e., petitioners'
publication of election surveys), it does not go so far as to
suppress desired expression.
There is neither prohibition nor censorship specifically aimed at
election surveys. The freedom to publish election surveys
remains.
All Resolution No. 9674 does is articulate a regulation as
regards the manner of publication, that is, that the disclosure of
those who commissioned and/or paid for, including those
subscribed to, published election surveys must be made.
[Social Weather Stations, Inc. v. COMELEC, 755 SCRA 124
(2015)]
113
FREEDOM OF
ASSEMBLY AND
PETITION
114

Q: Is the right to assembly

subject to prior restraint?
A:
No. It may not be conditioned upon
the prior issuance of a permit or
authorization from government
authorities. However, the right must
be exercised in such a way as will
not prejudice the public welfare.
115
Q: What is the so-called Permit

System?
A: Under the Permit System, before one
can use a public place, one must first
obtain prior permit from the proper
authorities. Such is valid if:
1. It is concerned only with the time, place,

and manner of assembly; and
2. It does not vest on the licensing
authority unfettered discretion in
choosing the groups which could use
the public place and discriminate others.
116

Q: What are the two tests

applicable to the exercise of the
right to assembly?
A:
1. Purpose Test- looks into the purpose
of the assembly regardless of its
backers. (De Jonge v. Oregon, 299 US
353, 365, 1937)
2. Auspices Test- looks into the
backers/supporters.
117
Q: The Samahan ng mga Mahihirap (SM)

filed with the Office of the Mayor of Manila
an application for permit to hold a rally on
Mendiola Street on September 5, 2006 from
10:00 a.m. to 3:00 p.m. to protest the
political killings of journalists.
Their application was denied on the ground
that a rally at the time and place applied for
will block the traffic in the San Miguel and
Quiapo Districts.
He suggested the Liwasang Bonifacio,
which has been designated a Freedom
Park, as venue for the rally.
118

1. Does the SM have a remedy to

contest the denial of its application
for a permit?
A: Yes, SM has a remedy. Under B.P. 880 (The
Public Assembly Act of 1985), in the event of denial
of the application for a permit, the applicant may
contest the decision in an appropriate court of law.
The court must decide within twenty-four (24) hours
from the date of filing of the case.
Said decision may be appealed to the appropriate
court within forty-eight (48) hours after receipt of
the same. In all cases, any decision may be
appealed to the Supreme Court (Bayan, et al. v.
Ermita, G.R. No. 169838, April 25, 2006).
119
2. Does the availability of a

Freedom Park justify the
denial of SM's application
for a permit?
120

A: No, the availability of a freedom park

does not justify the denial of the permit. It
does imply that no permits are required
for activities in freedom parks.
Under B.P. Blg. 880, the denial may be
justified only if there is clear and
convincing evidence that the public
assembly will create a clear and present
danger to public order, public safety,
public convenience, public morals or
public health (Bayan, et al. v. Ermita, G.R.
No. 169838, April 25, 2006).
121
3. Is the requirement to apply

for a permit to hold a rally a
prior restraint on freedom
of speech and assembly?
122

A: No, the requirement for a permit to

hold a rally is not a prior restraint on
freedom of speech and assembly.
The SC has held that the permit
requirement is valid, referring to it as
regulation of the time, place, and manner
of holding public assemblies, but not the
content of the speech itself.
Thus, there is no prior restraint, since the
content of the speech is not relevant to
the regulation (Bayan, et al. v. Ermita,
G.R. No. 169838, April 25, 2006).
123
4. Assuming that despite the

denial of SM's application
for a permit, its members
hold a rally, prompting the
police to arrest them. Are
the arrests without judicial
warrants lawful?
124

A: The arrests are unlawful.

What is prohibited and penalized under
Sec. 13 (a) and 14 (a) of B.P. Big 880
is -- "the holding of any public assembly
as defined in this Act by any leader or
organizer without having first secured that
written permit where a permit is required from
the office concerned x x x Provided,
however, that no person can be
punished or held criminally liable for
participating in or attending an
otherwise peaceful assembly.”
125
Thus, only the leader or organizer of

the rally without a permit may be
arrested without a warrant while the
members may not be arrested, as they
can not be punished or held criminally
liable for attending the rally.
However, under Section 12 thereof,
when the public assembly is held
without a permit where a permit is
required, the said public assembly may
be peacefully dispersed. (2006 Bar
Question)
126

Q: Ten public school teachers left their

classrooms to join a strike, which lasted
for one month, to ask for teachers'
benefits.
The Department of Education charged
them administratively, for which reason
they were required to answer and
formally investigated by a committee
composed of the Division
Superintendent of Schools as Chairman,
the Division Supervisor as member and
a teacher, as another member.
127
On the basis of the evidence adduced at the

formal investigation which amply established
their guilt, the Director rendered a decision
meting out to them the penalty of removal from
office.
The decision was affirmed by the DepEd
Secretary and the Civil Service Commission.
On appeal, they reiterated that their strike was
an exercise of their constitutional right to
peaceful assembly and to petition the
government for redress of grievances.
Is the contention of the teachers tenable?
128

A: According to De la Cruz v. Court of

Appeals G.R. No. 126183, March 25, 1999,
the argument of the teachers that they were
merely exercising their constitutional right
to peaceful assembly and to petition the
government for redress of grievance cannot
be sustained, because such rights must be
exercised within reasonable limits.
When such rights were exercised on regular
school days instead of during the free time
of the teachers, the teachers committed acts
prejudicial to the best interests of the
service. (2002 Bar Question)
129
Q. Petitioners assailed the provisions of BP No.

880,”Public Assembly Act of 1985” and they sought to stop
violent dispersals of rallies under the CPR Policy. The rule on
“Calibrated Preemptive Response” was enforced in lieu of
maximum tolerance. Is the CPR constitutional?
Answer: No. The Supreme Court held that B.P. No. 880 is not an
absolute ban of public assembles but a restriction that simply regulates
the time, place and manner of assemblies.
Anent the CPR, the Court ruled that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it means the
same thing as maximum tolerance. What is to be followed should be that
mandated by the law itself, namely, maximum tolerance. Ergo, the CPR
must be struck down as a darkness that shrouds freedom. It merely
confuses the people and is used by some police agents to justify abuses.
(Bayan Muna v. Ermita, G.R. No. 169838, April 25, 2006).
130

Q. Where the applicants for a permit specify a venue

where they want to hold a rally, could the mayor instead
specify another place?
Answer: No. Mayor Atienza failed to indicate how he had

arrived at modifying the terms of the permit against the
standard of a clear and present danger test which is an
indispensable condition to such modification.
The assumption — especially so where the assembly is

scheduled for a specific public place — is that the permit
must be for the assembly being held there. The exercise of
such a right is not to be "abridged on the plea that it may be
exercised in some other place.“ (IBP v. Mayor Atienza, GR
No. 175241, February 24, 2010)
131

Freedom of Expression/ Right To Peaceably Assemble: 2020 Constitutional Law 2 (Lecture 3)

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2020 Constitutional Law 2 (Lecture 3) 3/31/2020

2020 CONSTITUTIONAL LAW 2

Copyright by Atty. Enrique V. dela Cruz, Jr. 1

Section 4. No law shall be

Q: What are the limitations of

Copyright by Atty. Enrique V. dela Cruz, Jr. 2

• Laws against obscenity, libel and slander

Q: What are the four aspects of

1. Freedom from censorship or prior

Copyright by Atty. Enrique V. dela Cruz, Jr. 3

The Right to FREE SPEECH

• May the school

Tinker v. Des Moines (U.S. case)

Copyright by Atty. Enrique V. dela Cruz, Jr. 4

Tinker v. Des Moines (U.S. case)

Tinker v. Des Moines (U.S. case)

Copyright by Atty. Enrique V. dela Cruz, Jr. 5

Bethel School District v. Fraser

Bethel v. Fraser (cont’d)

Copyright by Atty. Enrique V. dela Cruz, Jr. 6

Bethel v. Fraser (cont’d)

Bethel v. Fraser (cont’d)

Copyright by Atty. Enrique V. dela Cruz, Jr. 7

Papish v. Missouri (U.S. case)

Copyright by Atty. Enrique V. dela Cruz, Jr. 8

Papish v. Missouri (cont’d)

• The Court ruled in favor of Papish

What is the extent of Free Speech?

Copyright by Atty. Enrique V. dela Cruz, Jr. 9

Malabanan vs. Ramento

Is the penalty correct?

Copyright by Atty. Enrique V. dela Cruz, Jr. 10

Why was the penalty reduced?

Clear & Present Danger Test

Copyright by Atty. Enrique V. dela Cruz, Jr. 11

Free Speech v. Academic Freedom

Free Speech v. Academic Freedom

Copyright by Atty. Enrique V. dela Cruz, Jr. 12

Free Speech on campus

Free Speech on campus

Copyright by Atty. Enrique V. dela Cruz, Jr. 13

FREE SPEECH NOT ABSOLUTE

Miriam College vs. C.A.

Copyright by Atty. Enrique V. dela Cruz, Jr. 14

The nature of the articles

Liability of Campus Journalists

Copyright by Atty. Enrique V. dela Cruz, Jr. 15

Campus Journalists not Immuned

Copyright by Atty. Enrique V. dela Cruz, Jr. 16

The NTC issued a warning that it will suspend,

WHY IS THE NTC WARNING

Copyright by Atty. Enrique V. dela Cruz, Jr. 17

WHEN IS PRIOR RESTRAINT ALLOWED?

DISTINGUISH CONTENT-BASED VS.

Copyright by Atty. Enrique V. dela Cruz, Jr. 18

WHAT IS THE STRICT SCRUTINY TEST?

• The strict scrutiny test is applied to content-based

WHAT IS THE INTERMEDIATE TEST?

• Intermediate test is employed, which requires that the