CONSTITUTIONAL LAW 2

FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

Art. III, Sec. 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.
To further bolster this section:
Art. III, Sec. 18(1):
No person shall be detained solely by reason of his political beliefs and
aspirations.

This article ensures the free & effective communication of ideas from mind to
mind.

This article is limited to the discussion of matters of public interest and does not
cover private interest.

IMPORTANCE:
Every individual has a right to offer his views and suggestions in the discussion of
the common problems of the community of the nation.
Philosophical basis may be found in the case of Abrams v. US: The ultimate good
desired is better reached by a free trade in ideas.
SCOPE:
Not confined only to those sympathetic or acceptable to the majority
It should allow the articulation of even the unorthodox ideas.
To invite dispute according to the U.S. Supreme Court.
Justice Holmes: This right exists not so much for the thought that agrees with us
as for the thought that we detest.
It includes the right to be silent:
o Barnette Case: The Bill of Rights which guarantees to the individual the
liberty to utter what is in his mind also guarantees to him the liberty not to
utter what is not in his mind.
The right to an audience: the State cannot prohibit the people from hearing what
a person has to say.
The right to listen also includes the right not to listen.
MODES OF EXPRESSION (SLOWM):
1. Symbolisms
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

2.
3.
4.
5.

Literary Works
Oral
Written
Media

ELEMENTS OF FREE EXPRESSION (CS):

1. Freedom from Previous Restraint or Censorship.
2. Freedom from Subsequent Punishment.

FREEDOM FROM CENSORSHIP

Censorship:
The unlawful curtailment of free flow of ideas.
Operates on prior approval of the government.
It need not partake of total suppression; mere restriction of circulation is
unconstitutional.
Examples:
o Previous approval of the government to allow the publishing of a book
o Obtention from authorities of a speaking permit before delivering speeches.
Grosjean v. American Press Co.: Tax on periodicals that published more than
20,000 copies per issue was invalid because its a tax on knowledge and it was an
indirect attempt to restrict the wide dissemination of ideas. A free press stands
as one of the greatest interpreters between the government and the people.
New York Times v. United States: Only a free and unrestrained press can
effectively expose deception in government Duty to prevent any part of the
government from deceiving the people and sending them off to distant lands to
die of foreign fevers and foreign shot and shell.
Iglesia ni Cristo v. Court of Appeals: The MTRCB has a right to review and clear the
show by the petitioner but should not have barred from public viewing their show
because the show criticized other religious practices; it was not an attack on other
religions. There was no clear and present danger.
Primicias v. Fugoso: The Mayor may only reasonably regulate, not absolutely
prohibit, the use of public places to hold a public meeting (by the Nacionalista
Party in Plaza Miranda).
National Press Club v. COMELEC: Even though there is a limitation on the right of
free speech and of access to mass media of the candidates, it gives an equal
opportunity to candidates who do not have deep pockets to spend for advertising
with all forms of media. It also respects the rights of citizens from the invasion of
the privacy due to these advertisements by candidates for public office.
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

FREEDOM FROM PUNISHMENT

Freedom of speech includes freedom after the speech.
Rights are still subject to police power and may be properly regulated in the
interest of public.
Freedom of expression does not cover ideas offensive to public order or decency
or the reputation of persons which are all entitled to protection by the State.
MAJOR CRITERIAS TO DETERMINE THE LIABILITY OF THE INDIVIDUAL FOR
IDEAS EXPRESSED BY HIM:

A. CLEAR AND PRESENT DANGER RULE

Most libertarian of the tests
Schenk v. United States (Violation of Espionage Act of 1917): Whether the words
used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that the State
has a right to prevent.
It is a question of proximity and degree.
The character of every act depends upon the circumstances in which it is done.
The danger created must be clear, present and traceable to the ideas expressed.
o CLEAR: Casual connection with the danger of the substantive evil arising
from the utterance questioned.
o PRESENT: Time element. Identifies what is imminent and immediate danger.
The danger must be probably and very likely inevitable.
In the Terminiello v. City of Chicago case, a person was convicted for the noise
given by the people, of about 1,000, who protested his speech as he was giving it
inside an auditorium before an audience of about 800 (Conviction: Reversed)
while in Feiner v. New York, the conviction was because of the person himself that
spoke with intent to provoke a breach of the peace.
Picketing may be validly prohibited and penalized when set in a background of
violence.
Justice Brandeis in Whitney v. California stated that fear of serious injury or even
imminent danger cannot justify to resort to prohibition of free speech and
assembly. The evil apprehended must be relatively serious and there must be
probability of serious injury to the state.
Navarro v. Villegas: Unlike in Primicias case in 1947, the permit was not issued
because in the 1970s, at the height of student unrest and activism, speeches
planned to be delivered could ignite the turbulence the mayor wanted to prevent.
(Circumstances were different)
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

Reyes v. Bagatsing: The burden of proving the danger by the rally (in Luneta) was
on the mayor. The denial of the permit was invalid because of the lack of
probability of a clear and present danger. Chief Justice Fernando stated that the
function of freedom of expression was to insure a true ferment of ideas and that
the right was entitled to the utmost deference and respect, subject only to
well-defined limits. Authorities, therefor, can only regulate their proper use of
free speech.
Ruiz v. Gordon laid down the guidelines for the application of permit to hold an
assembly:
o PUBLIC PLACE: Applicants should inform the licensing authority of the date,
public place and time.
o PRIVATE PLACE: Only the consent of the owner OR the one entitled to its
legal possession is required.
The licensing authority should be informed at the earlier time for appraisal
purposes (based on clear and present danger) and that his decision must be
transmitted to the applicants at the earlier opportunity.
B. DANGEROUS TENDENCY DOCTRINE
Applied prior to the Clear and Present Danger Rule.
Highly unacceptable criterion to discourage attacks against the American
administration.
Cabansag v. Fernandez:
o Words uttered create a dangerous tendency and the State has the right to
prevent the same. Such are punishable.
o Sufficient that acts are in general terms and that there is a natural tendency
and probable effect of the utterance to bring about substantive evil which
the legislative body seeks to prevent.
o It is not necessary that the language is calculated to incite persons to acts
of force, violence or unlawfulness.
A person could be punished for his ideas that only have a tendency to create the
evil sought to be prevented. To create the actual evil is not necessary.
People v. Perez: The municipal secretary was sentenced to jail for the tendencies
to instigate others to cabal, rebellious conspiracies and tended to stir up people
against the lawful authorities.
Gitlow v. New York: Accused was convicted of inciting to overthrow the U.S.
Government. This case was a criticism of the dangerous tendency doctrine by
Justice Holmes.
o Every idea is an incitement but there is a difference between mere
expression and incitement the difference thereby being the speakers
enthusiasm for the result.
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

C. BALANCE-OF-INTEREST TEST
American Communications Association v. Douds: When the particular conduct is
regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgement of speech, the duty of the courts is to determine
which of the two conflicting interests demands the greater protection under the
particular circumstances presented.
In a given situation, if it should appear that there is urgent necessity for
protecting the national security against improvident exercise of freedom of
expression, the right must yield.
If no special justification exists, the right must prevail.
Authority is preferred here; liberty in clear and present danger rule.
According to Justice Black, this allows the courts to decide that freedom of speech
may not be enforced unless they believe it is reasonable to do so.
CRITICISM OF OFFICIAL CONDUCT
U.S. v. Bustos: Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech A public official must not be too think-skinned
with reference to comment upon his official acts.
This is a liberal rule stating that the official acts and even the private life, of a
public servant are legitimate subjects of public comment.
The comments must be made in good faith and with justifiable ends in order to be
protected from prosecution.
A public figure (i.e. a candidate for public office) may be subject of criticism.
Rosenbloom v. Metromedia: A private individual may be the subject of public
comment as long as it is a matter of general or public interest.
o Publics primary interest: Event; conduct of participant and the content,
effect and significance of the conduct.
Lagunzad v. Sotto Vda. De Gonzales: Private respondent, mother of deceased,
Moises Padilla who is a public officer, wanted to restrain the exhibition of
petitioners movie for being a public figure does not automatically destroy in toto
a persons right to privacy; it does not extend to fictional or novelized
representation of a person, no matter how public a figure he or she may be.
Ayer Productions Pty. Ltd. v. Judge Capulong: Enriles averments were rejected
because his life, depicted in the move Four Days of Revolution, showed his
participation in the EDSA Revolution and the film remained truthful to the event
aforementioned though showing his private life as a consequence.
People v. Alarcon: Publications tending to impede, obstruct, embarrass or
influence the courts in administration of justice in a pending suit constituted
criminal contempt.
Ivan Chris T. Luzuriaga, 1-O

CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

Zaldevar v. Sandiganbayan: Special inhibitions imposed on lawyers in the exercise

of their freedom of expression; A member of the bar can, and will, be stopped at
the point and where he infringer the Canon of Ethics.
ART AND OBSCENITY
Our jurisprudence on the regulation of public decency adheres to the traditional
rules, without the adventure, good or bad, of innovation.
People v. Go Pin: A person may be convicted for exhibiting nude paintings and
pictures if mainly for commercial, and not artistic, purposes.
Freedman v. Maryland: The administration of a censorship system for moving
pictures presents peculiar dangers to constitutionally protected speech; the
burden of proving that the film is unprotected expression must rest on the censor;
that judicial determination must be obtained for valid determination and; there
must be prompt determination within a specific time period.
Miller v. California: TEST OF OBSCENITY
o Whether the average person, applying contemporary community standards,
would find that the work taken as a whole, appeals to the prurient interest.
o Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable law.
o Whether the work, taken as a whole, lacks serious literary, artistic, political
or scientific value.
Courts must apply a community, not a national, standard.
Pita v. Court of Appeals: Determination of the word obscenity should be on a caseto-case basis.
ASSEMBLY AND PETITION
Public issues are better resolved after an exchange of views among citizens
meeting with each other for the purpose. It is an effective forum for the
ventilation of ideas.
Size is often a dependable gauge of the peoples support, or lack of it.
Obetention of a permit is for the use of the public place and not a permit for
assembling.
Primicias v. Fugoso is the authority in saying that local officials only have the
power to regulate, and not prohibit, such meeting.
De la Cruz v. Ela and the Navarro Case expanded such power to negotiate where
such an assembly would be held.
Taada v. Bagatsing: The Supreme Court is not precluded from regulating the
time, place and manner of holding a peaceable assembly. The content of the
speeches is what is protected. It is of the essence of respect for the constitutional
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

rights that the rally be allowed, but it is equally this Courts duty to avoid such
danger.
B.P. 880 otherwise known as the Public Assembly Act states that a permit for
holding a public assembly is not required if it is to be held:
o In a private place
o In the campus of a government-owned and operated education institution
or;
o In a freedom park.
The written application shall be filed with the mayors office at least FIVE (5) DAYS
BEFORE the scheduled meeting and shall be acted upon WITHIN TWO (2) DAYS
other wise, it is deemed granted.
DENIAL: Only upon clear and present danger.
Action on the application must be communicated within TWENTY FOUR (24)
HOURS to the applicant who may appeal the same to the appropriate court. A
decision must be reached within TWENTY FOUR (24) HOURS.
(1) TESTS
De Jonge v. Oregon:
o Not as to the auspices but as to the purpose of the meeting.
o Not as to the relations of the speakers but whether their utterances
transcend the bounds of the freedom of speech which the Constitution
protects.
o If they committed a crime or conspired against public peace and order, they
may be prosecuted.
Lawful Organizers + Unlawful Purpose = Illegal Assembly
U.S. v. Apurado: There is a protest against grievances to remove certain public
officials in the council chamber. The defendants herein are acquitted of the charge
of sedition for this meeting is lawful, as it is the right of citizens involved.
Malabanan v. Remento: Certain student leaders were allowed to re-enroll and
finish their studies after being expelled for holding a demonstration within the
premises of the university outside what is permitted by the school authorities.
According to Justice Fortas, the students did not shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate although these
rights were not unlimited.
Malabanan was affirmed in Villar v. Technological Institution of the Philippines
although some students were not allowed to re-enroll due to academic
deficiencies in which, as the Supreme Court held, should be meticulously followed
because such institution has the right to set academic standards.
PBM Employees Association v. PBM: The workers contention was sustained for: 1)
the loss that the management would incur would not mean death for the company
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

itself and; 2) they were rallying not against the management or the company but
vis--vis the Pasig police.
RIGHT OF ASSOCIATION
Art. III, Sec. 8:
The right of the people, including those employed in the public and private
sectors, to form unions, associations or societies for purposes not contrary to law
shall not be abridged.

Comprehended in due process as it protects the persons liberty.

Deemed embraced in the freedom of expression because the organization can be
used as a vehicle for the expression of views that have a bearing on public
welfare.
For purposes not contrary to law is a built-in limitation though unnecessary.
The legislature cannot arbitrarily declare a purpose unlawful if it is not inimical to
public welfare.
People v. Ferrer: The Anti-Subversion Act does not impair the right of association
because it only aims to outlaw organizations aimed at the violent overthrow of the
government; Self-preservation is the ultimate value of society.
Liberty Flour Mills Employees Association v. Liberty Flour Mills, Inc.: It is the policy
of the State to promote unionism to enable workers to negotiate with
management with more persuasiveness rather than independent bargaining.
Closed-Shop Agreement: A valid form of union security in employment wherein an
employee, as a requisite for regular employment, must join such union.
Occea v. COMELEC: Political neutrality was needed for the discharge of duties of
barangay officials (Political parties are inhibited from participating in barangay
elections)
In re: Edillion: Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his Integrated Bar
Chapter or vote or refuse to vote in its elections as he chooses. The only
compulsion to which he is subjected is the payment of annual dues which is a
valid exercise of police power by the State to uphold quality legal service.
ACCES TO INFORMATION
Art. III, Sec. 7
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

official acts, transactions, or decisions, as well as to government research data

used as basis for policy development, shall be afforded the citizen subject to such
limitations as may be provided by law.
(Related to Art. VI, Sec. 16(4) requiring publication of legislative journals from
time to time excepting such parts as may, in the judgement of the house, affect
national security and Sec. 20 which is the records and books of accounts of the
Congress be open to the public in accordance with the law which shall be audited
by COA)

Baldoza v. Hon. Dimaano: Judge Dimaano had the power to regulate the
examination of judicial records although it had no power to prohibit the same.
Subido v. Ozaeta: Registration officers need not concern themselves with the
motives, reasons and objects of persons seeking access to public records unless it
is for unlawful purposes or sheer and idle curiosity.
o OUTRIGHT REFUSAL TO DISCLOSE: It is the limitation upon the availability of
access to the information sought, which only the Legislature may impose
o REGULATION OF MANNER TO EXAMINE: It pertains to the government
agency charged with the custody of public records. Authority to regulate is
to be exercised solely to the end that damage to, or loss of, public records
may be avoided.
Chavez v. PCGG: Restrictions to the right of information include:
1. National security matters and intelligence information.
2. Trade secrets and banking transactions.
3. Criminal matters.
4. Other confidential information.
In Kapisanan ng mga Brodkasters sa Pilipinas, the radio-TV coverage of Estradas
trial in the Sandiganbayan was denied for it may unduly influence the outcome of
the case.
Senate v. Executive Secretary Ermita: Executive privilege is recognized only in
relation to certain types of information of a sensitive character. The presumption
inclines heavily against executive secrecy and in favor of disclosure.
Neri v. Senate: Correct application of executive privilege (the private
communication involved diplomatic and national security matters)
Echegaray v. Secretary of Justice: A convict has the right to know the contents of
the Lethal Injection Manual because it is a matter of public concern.
Taada v. Tuvera: There is full publication or none at all; Publication of all laws and
other measures having the force of law is required because of the right to be
informed of such.
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CONSTITUTIONAL LAW 2
FREEDOM OF EXPRESSION

Based on the 2007 edition of Constitutional Law by

Isagani Cruz

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