I.

The Freedom of Speech and Expression

Section 4, Article III of the BILL OF RIGHTS: 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. FREEDOM OF EXPRESSION As defined by Wendell Philips, it is as at once the instrument and the guaranty and the bright consummate flower of all liberty. The definition covers freedom of expression in general, which embraces a number of cognate rights all aimed at insuring the free and effective communication of ideas from mind to mind. The other rights, in addition to freedom of speech, are: Freedom of press; Freedom of assembly; Freedom of petition; Freedom of religion; Right of association; Right to access information on matters of public concern; and, Right not to be detained solely by reason of ones political belief and aspirations. Stressed at the outset that freedom of expression is available only insofar as it is exercised for the discussion of matters affecting the public interest; In the words of the U.S. Supreme Court, a purely private matter which does not affect the public interest is not sanctioned by the constitution. Only matters that touch the heart of the existing order may be a valid subject of this freedom. IMPORTANCE: Importance is easily appreciated; this is first that is always curtailed when a free society falls under a repressive regime. The constitution provides that SOVEREIGNTY RESIDES IN THE PEOPLE. This sovereignty would be negated if they were denied the opportunity to participate in the shaping of public affairs through the arbitrary imposition upon them of the ban of silence. As an individual particle of sovereignty, every citizen has a right to offer his views and suggestions in the discussion of the common problems of the community or the nation. This is NOT only a right but a duty. From the moment various ideas are proposed, the people can, in their collective wisdom and after full deliberation, choose the best remedies to the difficulties they face.

PHILOSOPHICAL BASIS of Freedom of Expression eloquently stated by JUSTICE HOLMES in ABRAMS vs. US (250 U.S. 616): When men have realized that time has upset many fighting faiths, they may come to believe, more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by a free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. Two (2) Aspects in the Exercise of the Freedom of Expression and of Free Speech: 1. Freedom from Censorship or Prior Restraint It means freedom from official governmental restrictions on the press or other forms of expression in advance of actual publication of dissemination; and, It guarantees that the State should not impose conditions before the Freedom of Expression is exercised. 2. Freedom from Subsequent Punishment

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It is a limitation on the power of the State to impose a punishment after publication or dissemination; and, It is a guarantee that citizens cannot be the subject of subsequent punishment or penalty by the State after the exercise of the Freedom of expression. Tests for Valid Government Interference to Freedom of Expression 1. Clear and Present Danger Rule

When words are used in such circumstances and of such nature as to create a clear and present danger that will bring about the substantive evil that the State has a right to prevent. [SCHENCK VS US; 249 US 97] This rule requires that the State can limit or even curtail the exercise of freedom of expression if there is a clear and present danger of any substantive evil that the State has right to protect.

CLEAR: Causal connection with the danger of the substantive evil arising from the utterance question; PRESENT: Time element; identified with imminent and immediate danger; the danger must not only be probable, but very likely inevitable. In GONZALES VS COMELEC, No. L-27833, April 18, 1969, the Supreme Court held that: there are two tests that may supply an acceptable criterion for permissible restriction on freedom of speech. These are the clear and present danger rule and the 'dangerous tendency' rule. The first means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented. It has the advantage of establishing according to the above decision a definite rule in constitutional law. It provides the criterion as to what words may be publicly established. The "dangerous tendency rule" is such that If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. the very idea of a government, republican in form, citizens to meet peaceably for consultation in respect redress of grievances. As in the case of freedom of limited, much less denied, except on a showing of substantive evil that Congress has a right to prevent. implies a right on the part of its to public affairs and to petition for expression, this right is not to be a clear and present danger of a

The prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command.

2. Dangerous Tendency Rule Words uttered create a dangerous tendency of an evil which the State has a right to prevent; This rule requires that before the State can limit the exercise of freedom of expression, there must be a dangerous tendency of the utterances made as to create an imminent danger to the State.

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In CABANSAG VS FERNANDEZ, No. L-8974, Oct. 18, 1957 the Supreme Court held that: This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil the utterance be to bring about the substantive evil which the legislative body seeks to prevent. It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom. . . . Reasonably limited, it was said that this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the Republic.

3. Balancing of Interest Rule When a particular conduct is regulated in the interest of public order, and the regulations result in an indirect, conditional and partial abridgment of speech, the duty of the court is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented; This rule requires the court to balance the rights of individuals and the interest of the State before the freedom of expression will be the subject of limitation. This test is now used or the prevailing test used by the court in resolving cases involving the freedom of expression.

Thus, in AMERICAN COMMUNICATIONS ASSEMBLY VS DOUDS, 399 US 282 it was held that: it is designed to protect the public not against what Communists and others identified therein advocate or believe, but against what Congress has concluded they have done and are likely to do again, and the probable effects of the statute upon the free exercise of the right of speech and assembly must be weighed against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce, and that Communists and others identified pose continuing threats to that public interest when in positions of union leadership. In view of the complexity of the problem of political strikes and how to deal with their leaders, the public interest in the good faith exercise of the great powers entrusted by Congress to labor bargaining representatives under the National Labor Relations Act, the fact that it touches only a relatively few persons who combine certain political affiliations or beliefs with the occupancy of positions of great power over the economy of the country, and the fact that injury to interstate commerce would be an accomplished fact before any sanctions could be applied, the legislative judgment that interstate commerce must be protected from a continuing threat of political strikes is a permissible one in this case.

The FREEDOM OF PEACEFUL ASSEMBLY is correlated with the FREEDOM OF EXPRESSION. In view of this, there are (2) two tests to determine whether the State can curtail the exercise of this right, namely: 1. Purposes Test It so holds that the Freedom of Peaceful Assembly can be curtailed or limited if the purpose of the assembly is illegal or contrary to law.

2. Auspices Test It so holds that the determination of whether or not the freedom can be limited is dependent upon the participants of the assembly.

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II. Relevance of the Freedom of Speech and

Expression to Labor The Constitution is the bedrock of the most fundamental rights of the citizens. It guarantees the most basic and most important rights of the old, young, rich and poor. As for the Filipino workers, the 1987 Constitution embodies new provisions directly affecting their rights and welfare. While all persons enjoy these rights, their particular application to workers carries certain significance to labor which requires special consideration. 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. (Sec 4 Art. III 1987 Constitution) The freedom of expression clause quoted above is derived from the Philippine Bill of 1902 which replicated verbatim the corresponding provision in the U. S. Constitution (1935), reaffirmed in the 1972 Constitution, and now appears in the 1987 Constitution which adds expression to the freedoms protected. The exercise of freedom of expression by workers, students, and others in society has always been at the heart of the struggle for democracy around the world, and it remains at the heart of society once democracy has been achieved. Without freedom of expression, other freedoms lose their substance. It is impossible to defend individual rights if citizens are unable to express their views and grievances. Even if the labor groups are given the right to associate, curtailing the freedom of expression is like handing them a microphone and telling them not to use it. So why does the freedom of expression play a critical role in labor? There are many reasons why freedom of expression, which encompasses speech, the press, assembly and petition, is essential to a free labor industry: 1. Freedom of expression is the foundation of self-fulfillment. Self- expression enables an individual to realize his or her full potential as a human being. The right of the workers to express their thoughts, desires, and aspirations, and to communicate freely with others, affirms their dignity and worth as members of the labor group that is recognized as the primary social economic force in the State. Thus, freedom of expression is an end in itself and should not be subordinated to any other goals of society.

2. Freedom of expression provides a "check" against possible corruption and excess of the employers. The rights of employees to comment on their employers' conduct should take precedence over employers' rights to reputation and staff loyalty. The freedom of inquiry and liberty of expressions are clearly essential and indispensable to the labor industry. Questioning the authority of the employers is needed to strike a balance between the naturally skewed position of the employer and the employee. The framers of the law well understood the tendency of the employer to perpetuate itself by enacting repressive measures for the furtherance of the business or industry. Thus the freedom of expression is the sanctuary of grieving laborers and workers. Thus in Republic Savings Bank vs CIR, et. al (21 SCRA 226), the Supreme Court held that: The employees shall have the right to engage in concerted activities for their mutual aid or protection even though no union activity be involved, for collective bargaining be contemplated. Instead of stifling criticism, the Bank should have allowed the respondents to air their grievances. Good faith bargaining required of the Bank an open mind and a sincere 11 desire to negotiate over grievances. The grievance committee, created in the collective bargaining agreements, would have been an appropriate forum for such negotiation. Indeed, the grievance procedure is a part of the continuous process of collective 12 bargaining. It is intended to promote, as it were, a friendly dialogue between labor and management as a means of maintaining industrial peace. In final sum and substance, this Court is in unanimity that the Bank's conduct, identified as an interference with the employees' right of self-organization, or as a

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retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair labor practice. 3. The freedom of expression helps the labor sector to pursue social justice.

Workers, struggling both for narrow, immediate interests and for broader social justice use associational and expressive activities to further such goals. The prime goal of the freedom of expression is to protect the laborers from injustice. But how can the State protect the workers if they are prohibited to speak up and blow the whistle? Without the freedom of expression, unjust employers will not be subjected to the law and the poor laborers will be subjected to all kinds of mistreatment and abuse. Thus, it was held by the Supreme Court in Philippine Blooming Mills Employment Organization, et al vs Philippine Blooming Mills Co., Inc. and CIR (G.R. No. L-31195 June 5, 1973) that: The respondent company is guilty of unfair labor practice. Because the refusal on the part of the respondent firm to permit all its employees and workers to join the mass demonstration against alleged police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for redress of grievances, the respondent firm committed an unfair labor practice Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic understanding of the plight of its laborers who claim that they are being subjected to indignities by the local police, It was more expedient for the firm to conserve its income or profits than to assist its employees in their fight for their freedoms and security against alleged petty tyrannies of local police officers. This is sheer opportunism. Such opportunism and expediency resorted to by the respondent company assaulted the immunities and welfare of its employees. It was pure and implement selfishness, if not greed. Apart from violating the constitutional guarantees of free speech and assembly as well as the right to petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers for proceeding with the demonstration and consequently being absent from work, constitutes a denial of social justice likewise assured by the fundamental law to these lowly employees. There was a lack of human understanding or compassion on the part of the firm in rejecting the request of the Union for excuse from work for the day shifts in order to carry out its mass demonstration. And to regard as a ground for dismissal the mass demonstration held against the Pasig police, not against the company, is gross vindictiveness on the part of the employer, which is as unchristian as it is unconstitutional.

III. Picketing as a Phase of Freedom of Expression

Philippine jurisprudence interpreting this provision has applied the freedom of expression to cover the labor practice of picketing. Hence, it has been declared that by peaceful picketing, working men communicate their grievances. As a means of communicating the fact of a labor dispute, peaceful picketing may be a phase of the Constitutional right of free utterance. Article 263 of the Labor Code of the Philippines on Strikes, Picketing and Lockouts states that: (a) It is the policy of the State to encourage free trade unionism and free collective bargaining. (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intraunion disputes.

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Picketing involves the presence of striking workers or their union brothers who pace back and forth before the place of business of an employer considered unfair to organized labor, in the hope of being able to persuade peacefully other workers not to work in the establishment, and customers not to do business there. Picketing almost always accompanies a strike. But there may be picketing without a strike because employees may picket without engaging in work stoppage. Although picketing is a form of concerted action, not every concerted action is a strike. Picketing is considered an important phase of the freedom of expression. The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. (PAFLU vs. Cloribel, 27 SCRA 472.) a.) Picketing without Striking The common-law rule in some jurisdiction was that picketing without a strike was no more unlawful than a strike without picketing. Under this rule, consumer picketing and the recognitional or organizational picketing were lawful. Other jurisdictions forbade picketing in the absence of a labor dispute between the employer and his employees, as where a strike has ended. Today it is established that the constitutional right of free speech is infringed by a states judicial policy for forbidding resort to peaceful picketing where there is no immediate employer-employee dispute, as in the case of organizational or recognitional picketing. Hence, a state cannot outlaw picketing merely because there is no strike in progress. (48 Am. Jur. 2d, 2054, p. 425.) b.) Moving Picket It will be noticed that a picket line, whether large or small, keeps in constant motion. The underlying reason is one of law. The public easement of way and passage permits the pickets to parade in front of or near the picketed establishment. As members of the general public, they have the right of passage over so much of the employers land as is used as a highway. This right, however, is one of passage a pedestrian right. It does not create the additional rights of squatting or assembly on this portion of the employers land. Any such squatting or assembly would exceed the scope of the publics easement and would constitute an enjoinable trespass. (Rothenberg, pp. 93-94.) IV. Limitations to Picketing The recognition of peaceful picketing as an exercise of free speech does not imply that the States must be without power to confine the sphere of communication to that directly related to the dispute. In a more direct statement, it has been held that what is protected is the element of communication, not the act of patrolling or marching which may be subject to reasonable regulation. (International Brotherhood of Teamsters vs. Hanke, 1950). The Labor Code of the Philippines enunciates in Article 264 on Prohibited Activities: (b) No person shall obstruct, impede, or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by employees during any labor controversy or in the exercise of the right to self-organization or collective bargaining, or shall aid or abet such obstruction or interference. XXX (e) No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employers premises for lawful purposes, or obstruct public thoroughfares. (As amended by Batas Pambansa Bilang 227, June 1, 1982). Further, the Omnibus Rules Implementing the Labor Code, Book Five - Labor Relations, Rule XIII on Picketing, Strikes and Lockouts provides: SECTION 11. Peaceful picketing. Workers shall have the right to peaceful picketing. No person engaged in picketing shall commit any act of violence, coercion or intimidation or obstruct the free ingress to or egress from the employer's premises for lawful purposes, or obstruct public thoroughfares. No person shall obstruct, impede or interfere with, by force, violence, coercion, threats or intimidation, any peaceful picketing by workers during any labor controversy or in the exercise of the right to self-organization or collective bargaining or shall aid or abet such obstruction or interference. No employer shall use or employ any person to commit such acts nor shall any person be employed for such purpose.

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SECTION 12. Injunctions. No court or entity shall enjoin any picketing, strike or lockout, except as provided in Articles 218 and 264 of the Code. The Commission shall have the power to issue temporary injunctions in such cases but only after due notice and hearing and in accordance with its rules. The reception of evidence for the application of a writ of injunction may be delegated by the Commission to any Labor Arbiter who shall submit his recommendations to the Commission for its consideration and resolution. Where the parties are not residents of Manila, the Labor Arbiter shall conduct hearings in such places as he may determine to be accessible to the parties and their witnesses. Any ex parte restraining order issued by the Commission, or its Chairman or ViceChairman when the Commission is not in session and as prescribed by its rules, shall be valid for a period not exceeding 20 days. In the case of Philippine Association of Free Labor Unions vs. Clorabel, G.R. NO. L-25878, March 28, 1969, a writ of preliminary injunction was issued against petitioner Union whose members were picketing in front or along the common passageway of the six-storey Wellington Building in Plaza Calderon, Binondo, Manila, owned by the Wellington Investment and Manufacturing Corporation, and tenanted by different persons and business firms. The Union objected to the issuance of the writ but the Supreme Court sustained the right of the plaintiffs to a writ under the Rules of Court in this wise: The right to picket as a means of communicating the facts of a labor dispute is a phase of the freedom of speech guaranteed by the constitution. If peacefully carried out, it cannot be curtailed even in the absence of employer-employee relationship. The right is, however, not an absolute one. While peaceful picketing is entitled to protection as an exercise of free speech, we believe that courts are not without power to confine or localize the sphere of communication or the demonstration to the parties to the labor dispute, including those with related interest, and to insulate establishments or persons with no industrial connection or having interest totally foreign to the context of the dispute. Thus the right may be regulated at the instance of third parties or "innocent bystanders" if it appears that the inevitable result of its exercise is to create an impression that a labor dispute with which they have no connection or interest exists between them and the picketing union or constitute an invasion of their rights. Picketing as a concerted activity is subject to the same limitations as strike, particularly as to lawful purpose and lawful means. Like the freedom of expression in general, it has its limits. Thus, to the extent that it is an instrument of coercion rather than of persuasion, it cannot rightfully be entitled to the protection associated with free speech. (Security Bank Employees Union vs. Security Bank and Trust, 23 SCRA 503, 516.)

a) Obstruction All courts agree that picketing so conducted as to amount to a nuisance is unlawful. Picketing may constitute a nuisance if it is so conducted as to fall within the definition of the term. It would seem that picketing may be nuisance if it constitutes an obstruction to the free use of property, so as substantially to interfere with the comfortable enjoyment of life or property, or if it constitutes an unlawful obstruction to the free passage or use, in the customary manner, of a street. Picketing accompanied by intimidation, threats, violence, and coercion may properly be held to constitute a nuisance. (31 Am. Jur., Sec. 248, p. 955.) b) Violence and Intimidation Picketing carried on with intimidation, threats, coercion, or force is unlawful, however laudable the strikers motive or purpose, and regardless of whether the intimidated persons are the employers employees or potential employees or customers. The law does not countenance any display that is the equivalent of force and intimidation, or of a disturbance of the peace, and even those engaged in a bona fide labor dispute are not justified in assaulting a police officer, obstructing an officer in attempting to make an arrest, and engaging in an affray. Vandalism and acts of a less terroristic nature which are designed to cause physical discomfort to the employers customers are also unlawful. (48-A Am. Jur. 2d 2059, pp. 427-428.) c) Untruthful Picketing

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Picketing may carry placards and banners truthfully advising the public concerning the dispute, but untruthful picketing is unlawful picketing and is enjoinable even though its purpose is valid. False statements are not constitutionally protected free speech; however, the Constitution does not permit an injunction against all picketing merely because the pickets have carried signs with false statements. (48-A Am. Jur. 2d 2006, p. 431) Picketing is not peaceful where there is shouting or the use of loudspeakers in front of a picketed place of business. Pickets may not properly use abusive and threatening language toward patrons of a place or business or against employees. Employees cannot be said to have kept within the bounds of peaceful picketing when they have gone beyond mere attempt to persuade customers to withdraw their patronage and resort to abusive and threatening language toward the patrons themselves. ( 31 Am. Jur., Sec. 245, p. 954.) Permissible activities on the part of the picketers do not include misrepresentation. This is in accord with the general rule that the means employed in aid of a strike must be free from falsehood or defamation. (31 Am. Kur., Sec. 246.) Nonetheless, the use of discourteous and impolite language by the picketers does not give rise to a cause of action for libel and damages. (Phillipine Commercial and Industrial Bank vs. Philnabank Employees Association, 105 SCRA 315.)

IV. Case on Point

Hermogenes Mortera and Canlubang Workers' Union (CLO), petitioners, vs. the Court of Industrial Relations, Canlubang Sugar Estate and Bisig ng Canlubang (NLU) G.R. No. L-1340; October 13, 1947 Nature: Petition for annulment of CIR Order dated February 21, 1947 in case No. 44-V(1), entitled Bisig ng Canlubang (NLU) vs. Canlubang Sugar Estate. Facts: Petitioners are workers of the Canlubang Sugar Estate and while they were still members of the Bisig ng Canlubang (NLU) they filed a petition before the management of the said company presenting several demands relative to increase in wages, vacation with pay and the granting of gratuity for faithful long service. Lacking action on these demands, the workers declared a strike on December 9, 1946. At the preliminary hearing before the CIR on December 11, 1946, both parties, workers and the company, agreed that the latter will reopen and will readmit all the striking laborers with pay from the date when the strike was declared and that any concession that may be justified by the evidence will be made retroactive to such date (December 9, 1946). All of the other demands were left to the sound discretion of the CIR. As a result, laborers were ordered to return to their work under same conditions existing before the strike and that none of them shall be suspended except for just cause and after the authority of the court is obtained. The workers were also ordered not to declare any strike while the final determination of the case is pending. However, on February 17, 1947 a strike was declared by Mortera and other workers under the Calamba Workers Union (CLO) due to the failure of the company to accede to their demands. As a result of the breach of the earlier agreement, the CIR holding that the company being engaged in the manufacture of sugar which at that time is a very important and essential food, issued the Order dated February 21, 1947 directing all workers to return to work immediately and authorized the company to reopen and employ new workers to replace those who would fail to report. Issues: 1. Whether or not petitioners are parties to the case No. 44-V, entitled Bisig ng Canlubang (NLU) vs. Canlubang Sugar Estate, wherein the order of December 11, 1946 was issued prohibiting the workers from striking while the final determination of the case is pending. 2. Whether or not the prohibition against picketing in the said Order is a blanket prohibition against picketing in any guise or form.

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Held: For the first issue, petitioners are workers of the Canlubang Sugar Estate when they appeared for the first time before the CIR under the Bisig ng Canlubang (NLU) to air their grievances and they remained to be workers of that company even when later they seceded from that labor union and formed the Canlubang Workers Union (CLO). The Order of the CIR dated December 11, 1946 prohibiting the workers from strike pending decision of the case was addressed to the workers of the Canlubang Sugar Estate. The splitting of the workers union cannot affect the jurisdiction of the court. They may even dissolve the union completely but that still would not affect the jurisdiction of the court. Otherwise, we would be giving our approval to a scheme by which a workers union, in case of an adverse decision of the CIR may always make a mockery of orders and decisions of said court. Second, the prohibition should be understood to cover only illegal picketing, that is, picketing through the use of illegal means. Peaceful picketing cannot be prohibited. It is part of the freedom of speech guaranteed by the Constitution. For all the foregoing, the petition is dismissed.

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