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Constitutional Law II Reviewer

but by administrative bodies. Administrative bodies are not bound

University of the Philippines by the finer point of judicial due process but are nevertheless
Ultimate Constitutional Law 2 Reviewer bound by the due process clause (Bernas).
Prof. Roque’s Midterm Exam.
Our cases include Court of Industrial Relations (Ang Tibay vs. CIR)
Mike. Rod. Tin. Pau. Che. Meanne. Zsa Zsa. Migs. Weng. Sheryl. as an administrative court which exercises judicial and quasi-
judicial functions in the determination of disputes between
Note: You may use the sentences or paragraphs as your answer to employers and employees. National Telecommunications Company
the exam. Remember to underline the cases and the provisions (PHILCOMSAT vs. Alcuaz), National Labor Relations Commission or
that you will cite. Memorize provisions other than Art III which are NLRC (DBP vs. NLRC) and school tribunals (Ateneo vs. CA-Board of
found in the syllabus. For Consti I questions, trust your stock Discipline, Alcuaz vs. PSBA, Non vs. Judge Dames, Tinker vs. Des
knowledge but it would really help reading the whole Consti. Moines Community School District) also are clothed with quasi-
Always answer intelligently, even when you’re just bluffing. You judicial function. It is a question of whether the body or institution
may opt to use the ILAC form (Issue, Law, Argument, Conclusion). has a judicial or quasi-judicial function that makes it bound by the
due process clause. (Judicial function is synonymous to judicial
Procedural Due Process power which is the authority to settle justiciable controversies or
disputes involving rights that are legally enforceable and
In the early history, due process was understood chiefly to the demandable or the redress of wrongs for violations of such rights. It
mode of procedure which government agencies must follow; it was is a determination of what the law is and what the legal rights of
understood as a guarantee of procedural fairness. Its essence was the parties are with respect to a matter in controversy).
expressed by Daniel Webster as a “law which hears before it
condemns” In the famous Dartmouth college case, Mr. Webster Requisites in Administrative Proceedings Which Must Exercise
argued that due process is that “which proceeds upon enquiry, and Judicial Or Quasi-Judicial Functions
renders judgment only after trial. It contemplates notice and
opportunity to be heard before judgment is rendered, affecting In Ang Tibay vs. CIR, the Court laid down cardinal requirements in
one’s person or property”. administrative proceedings which essentially exercise a judicial or
quasi-judicial function. These are:
In the Philippine jurisprudence, there are several attempts to
define the concept of due process and many of our jurisprudence 1. the right to a hearing, which includes the right to present
have fused the elements of both procedural due process and one’s case and submit evidence in support thereof
substantive due process as well as the elements of the equal 2. The tribunal must consider the evidence presented
protections which make the generalized definition of the concept. 3. The decision must have something to support itself
4. The evidence must be substantial. Substantial evidence
Due Process Not Always A Judicial Process means such a reasonable evidence as a reasonable mind
might accept as adequate to support a conclusion
Procedural due process is not always a judicial process and
frequently, legal controversies have to be decided not by the courts

5. The decision must be based on the evidence presented at prospective, the person whose rights or property may be affected
the hearting or at least contained in the record and by the action is entitled to notice and hearing (PHILCOMSAT vs.
disclosed to the parties affected Alcuaz).
6. The tribunal or body of any of its judges must act on its
own independent consideration of the law and facts of the Not Actual Hearing But The Opportunity To Be Heard
controversy and not simply accept the views of a
subordinate The heart of procedural due process is the need for notice and
7. The Board or body should, in all controversial questions, an opportunity to be heard. Moreover, what is required is not
render its decision in such manner that the parties to the actual hearing but a real opportunity to be heard. Thus, one who
proceeding can know the various issues involved and the refuses to appear at a hearing is not thereby denied due process if
reason for the decision rendered. a decision is reached without a warning for him (Ateneo vs. CA).
Likewise, the requirement of due process can be satisfied by
Also the Court has set down the procedure which educational subsequent due hearing (remember Sir Lumba’s example of the
institutions must follow. Due process in disciplinary cases involving nuclear bomb: notice may be served after detonation of the bomb).
students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice. The In Banco Espanol Filipino vs. Palanca which is a case of foreclosure,
proceedings in student discipline cases may be summary; and cross- some notification of the proceedings to the non-resident owner is
examination is not an essential part thereof. The minimum essential which must prescribe the time within which appearance
standards set by the Court to satisfy the demands of procedural must be made. This necessitates a publication or a personal notice
due process are: thru mail if the residence of the non-resident is known. This is
constructive service or notice which is a means provided by law
1. The students must be informed in writing of the nature and whereby the owner may be admonished that his property is the
cause of any accusation against them subject of judicial proceedings and that it is incumbent upon him
2. They shall have the right to answer the charges against to take such steps as he sees fit to protect it. Since property is
them with the assistance of counsel, if desired assumed to be in the possession of its owner, in person or by an
3. They shall be informed of the evidence against them agent, he may be safely held to be affected with knowledge that a
4. They shall have the right to adduce evidence in their own proceeding has been instituted against his property. So that when
behalf the effectiveness of the means of notification falls short,
5. The evidence must be duly considered by the investigating presumption of possession takes place and the owner also has the
committee or official designated by the school authorities duty to inspect the status of his property.
to hear and decide the case. (PSBA vs. Alcuaz)

It is a general rule that the notice and hearing are not essential to Purposes of Procedural Due Process
the validity of administrative body acts in the exercise of
executive, administrative or legislative functions; but where public According to Bernas, as a rule of fairness, procedural due process
administrative body acts in a judicial or quasi-judicial matter, and helps achieve two purposes. Instrumentally, it contributes to
its acts are particular and immediate rather than general and accuracy and thus minimizes errors in deprivations. More

intrinsically to the person who is the subject of deprivation, it these licenses, once issued, may become essential in the pursuit of
gives him a sense of rational participation in a decision that can livelihood as in this case. The person, whose license was suspended
affect his destiny and thus enhances his dignity as a thinking because of his failure to post a security to cover the amount of
person (quotable lang). damages caused by the accident, is deprived of the chance to
proffer evidence on liability.
When Is There A Violation of Due Process
In Estrada vs. Sandiganbayan, it was held that there was no
It has been recently held that, while fairness is not violated in violation of due process because the nature of the charges against
administrative proceedings when the hearing officer is not the the petitioner is not uncertain and void merely because general
same person who decides the case, there is violation of due terms are used or because it employed terms that were not
process when the officer who reviews a case is the same person defined. The Anti-Plunder law does not violate due process since it
whose decision is on appeal. It has also been held that, while defines the act which it purports to punish, giving the accused fair
notice and hearing are required in judicial and quasi-judicial warning of the charges against him, and can effectively interpose a
proceedings, they are not prerequisites in the promulgation of defense against on his behalf.
general rules. But fixing rates, being a quasi-judicial process,
(Protection for Property Interests)
In Goldberg vs. Kelly, it was held that due process requires an
adequate hearing before termination of welfare benefits. The If all that the due process clause requires is proper procedure, then
constitutional challenge cannot be answered by an argument that life, liberty, and property can be destroyed provided proper forms
public assistance benefits are just a privilege and not a right. It is are observed. Such an interpretation, evidently, makes of the due
crucial to consider that the termination of aid pending resolution process clause a totally inadequate protection for personal and
may deprive an eligible recipient of the very means by which to property rights.
live while he waits. What will serve due process in a case like this
is pre-termination evidentiary hearing which will not take form of a The due process clause must be interpreted both as a procedural
judicial or quasi-judicial trial but just a full administrative review and a substantive guarantee. It must be a guarantee against the
and informal procedures such as appearing personally before the exercise of arbitrary power even when the power is exercised
official who determines eligibility or at the very least, the according to proper forms and procedure.
government must show evidence to prove the need for the
termination of the benefits and disclose that to the individual The requirement of substantive due process, however, is not a rigid
receiving them so that he may have the opportunity to counter if it concept. The heart of substantive due process is the requirement
is untrue. of “reasonableness,” or absence of exercise of arbitrary power.
These are necessarily relative concepts which depend on the
In Bell vs. Burson, it was stated that the suspension of licenses circumstances of every case.1
involves a state action that adjudicates important interests in
licenses. In such cases, the licenses are not to be taken without the
procedural due process required by the 4th Amendment because 1
Bernas, p.38 “Constitutional Rights and Social Demand Part II”

CALDER v BULL Issue: Whether the statute is unconstitutional.

(Focus on the property aspect vis-à-vis the Bill of Rights )
A resolution was passed by the Legislature of Connecticut that had Ruling: Yes. The statute is unconstitutional.
the effect of divesting the “right” that accrued to Calder and Wife
when the Court of Probate disapproved the will of Normand The statute interferes with the liberty of a person and the right of
Morrison executed in favor of Bull and Wife. free contract between employer and employee by determining the
hours of labor in the occupation of a baker without reasonable
The resolution granted a new hearing in the court of probate. The ground for doing so.
new hearing approved the will of Morrison.
The general right to make a contract in relation to one’s business is
Issue: Whether the resolution violated due process in contravention a liberty protected by the 14th amendment.2
of the Constitution.
The state may interfere with and regulate both property and
Ruling: Due process was not violated. liberty rights to prevent the individual from making certain kinds
of contracts in its exercise of police power which relates to safety,
The 1st decree against the will of Normand Morrison did not transfer health, morals and general welfare of the society. In this instance,
any vested right to Calder and Wife. A vested right means that the the 14th amendment cannot interfere.
person has the power to do certain actions and possess things
according to the law of the land. If any one has a right to property, The trade of a baker is not an alarmingly unhealthy one that would
such right is a perfect and exclusive right. No one can have such warrant the state’s interference with rights to labor and contract.
right before he has acquired a better right to the property than any
other person in the world. Doctrine: The rule must have a more direct relation, as means to
an end, and the end itself must be appropriate and legitimate,
The Resolution combined with the new hearing and the decision before an act can be held to be valid which interferes with the
took away no right vested in Calder and Wife since the decree general right of an individual to be free in his person and in his
against the will did not vest or transfer any property right to them power to contract in relation to his own labor.
in the first place. PEOPLE v POMAR
Pomar was charged for refusing to pay his pregnant employee in
violation of the statue ordering employers to give pregnant women
employees 30 days vacation with pay before and after
LOCHNER v NEW YORK confinement.
Lochner was charged with violation of the labor laws of New York
for wrongfully and unlawfully permitting an employee to work more Issue: Whether the statute was adopted in the reasonable and
than 60 hours in one week. The statute allegedly violated mandates lawful exercise of the police power of the state.
that no employee shall contract or agree to work more than 10
hours per day. 2
No state can deprive any person of life, liberty or property without
due process of law.

PD 1717 is an invalid exercise of police power, not being in

Ruling: NO. The statute is not a reasonable and lawful exercise of conformity with the traditional requirements of a lawful subject
police power. and a lawful method. The extinguishment of the mortgage and
other liens constitutes taking without due process of law.
The right to contract about one’s own affairs is a part of the liberty
of the individual under the Constitution, and while there was no
such thing as absolute freedom of contract, and it was necessarily PEOPLE v NAZARIO
subject to a great variety of restraints, yet none of the exceptional Nazario refused to pay taxes for the operation of the fishponds he
circumstances, which at times justify a limitation upon one’s right leased from the government in violation of the municipal
to contract, apply in this case. (citing Adkins v Children’s Hospital ordinances.
of the District of Columbia)
Issue: Whether the municipal ordinances are unconstitutional for
The right of liberty includes the right to enter into contracts and to vagueness?
terminate contracts. The statute violates liberty of contract
without due process. It takes into account only the welfare of the Ruling: NO. The municipal ordinances are not unconstitutional for
employee but fails to consider periods of distress in the business. vagueness.
The statute creates a mandatory term in any contract entered into
by an employer. It violates right to enter into contract upon terms A statute may be said to be vague if it lacks comprehensible
which parties may agree to. standards that men “of common intelligence must necessarily guess
at its meaning and differ as to its application.” It is repugnant to
the Constitution because:
NDC and AGRIX v PHIL VETERANS 1. It violates due process for failing to accord persons fair notice
AGRIX invoked PD 1717, which extinguishes all mortgages and other of the conduct to avoid;
liens attaching to any of the assets of the dissolved corporations, in 2. It gives law enforcers unbridled discretion in carrying it out.
order to stop the foreclosure of its assets mortgaged to PVB.
The assailed ordinances cannot be said to be tainted by vagueness
Issue: Whether PD 1717 violates the due process clause of the because it clearly provides what activity is to be avoided and to
constitution. whom the law applies.

Ruling (on due process): YES. PD 1717 is a violation of due process. BALACUIT v CFI
Owners of theaters assail the constitutionality of an ordinance for
The right to property is dissolved by legislative fiat without regard being violative of due process as it orders that admission tickets of
to the private interest involved. children in movie houses and other places of amusements should be
half the price of that of adults.
The public is not sufficiently involved to warrant the interference
of the government with the private contracts of Agrix. Issue: Whether the ordinance is a valid exercise of police power.

Ruling: The ordinance is not a valid exercise of police power for Dissenting Opinion of Justice Brandeis:
lack of lawful subject / lawful purpose.
The language of the Constitution guarantees everyone basic rights
The ordinance is not justified by any necessity of public interest. to liberty and privacy. The Fourth3 and Fifth4 Amendments were
The evident purpose of it is to reduce the loss in savings of parents, adopted to protect against government intrusion and “such invasion
in turn passing the buck to the theater owners. The contention of of the sanctities of a man’s home and the privacies of life.”
the city that they are preventing the movie houses from exploiting
children is not tenable. The dissenting opinion of Justice Brandeis introduces as to the
“right to be let alone” as an inherent right that is protected by the
The means are clearly unreasonable. How can the theater Constitution. In his words, “The makers of the Constitution
operators distinguish between a 13-year old and an 11-year old undertook to secure conditions favorable to the pursuit of
child? happiness. They recognized the significance of man’s spiritual
nature, of his feelings and of his intellect…They sought to protect
Americans in their beliefs, thoughts, their emotions and their
AGUSTIN v EDU sensations. They conferred, as against the government, the right to
Petitioner assails the constitutionality of Letter of Instruction No. be let alone—the most comprehensive of the rights and the right
229 which provides for the mandatory use of early warning device most valued by civilized men. To protect that right, every
for all motor vehicles. The petitioner asserts that his vehicle which unjustifiable intrusion by the government upon the privacy of the
is already equipped with blinking lights could well serve as an early individual, whatever the means employed, must be deemed a
warning device. violation of the Fourth Amendment. And the use, as evidence in a
criminal proceeding, of facts ascertained by such intrusion must be
Issue: Whether LOI 229 is not unconstitutional. deemed a violation of the Fifth.

Ruling: YES. LOI 229 is not unconstitutional. It is a valid exercise of

police power insofar as it promotes public safety. Early warning Skinner vs. Oklahoma
devices have a clear emergency meaning, whereas blinking lights
are equivocal and would increase accidents.

New Substantive Due Process: Protection for “Liberty” Interests in 3

US Consti, 4th Amendment: The right of the people to be
Privacy secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause,
Olmstead vs. US supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be
Wiretapping was not an unreasonable search and seizure within seized.
the meaning of the Fourth Amendment. 4
5th Amendment: No person…shall be compelled in any
criminal case to be a witness against himself.

The Supreme Court struck down a law allowing the involuntary

sterilization of criminals for violation of the Equal Protection
Clause of the Fourteenth Amendment. Eisenstandst vs. Baird

In the decision, the court recognized that marriage and procreation A statute prohibiting the distribution of contraceptives to
was a fundamental right which belonged to all citizens. As such, unmarried persons is violative of the Equal Protection Clause of
the government had a high burden of proof before it could the Constitution.
reasonably argue that it could deprive someone of it.
In Griswold, the right to privacy was applied to marital
Please take note: relationships. In this case, the Court extended this ruling to
1. There are limits to the so-called ‘presumption of unmarried couples, where the "right of privacy" is defined as the
constitutionality’, especially where the liberty of a person right of individuals, married or single, to be free from unwanted
is concerned. governmental intrusion into matters so fundamentally affecting a
2. “A law which condemns, without hearing, all the individuals person.
of a class to so harsh a measure as the present because
some or even many merit condemnation is lacking in the
first principles of due process. Poe vs. Ullman
3. While the state may protect itself from demonstrably
inheritable tendencies of the individual which are injurious Court did not grant relief to couples against the threatened
to the society, the most elementary notions of due process enforcement of Connecticut Law prohibiting the use of
would seem to require it to take appropriate steps to Contraceptives.
safeguard the liberty of the individual by affording him,
before he is condemned to an irreparable injury to his Please take note:
person, some opportunity to show that he is without such
inheritable tendencies. 1. In the dissenting opinion of Justice Harlan, he wrote that
“the statute making it a criminal offense for married
Griswold vs. Connecticut couples to use contraceptives is an intolerable and
unjustifiable invasion of privacy in the conduct f the most
A Connecticut statute making it a crime to use any drug or article intimate concerns of an individual’s personal life. The
to prevent conception violates the right of marital privacy which is statute in question deprives individuals of a substantial
within the penumbra of specific guarantees of the Bill of Rights. measure of liberty in carrying on the most intimate of all
personal relationships, and it does so arbitrarily and
Although the Bill of Rights does not mention ‘privacy’ the Court without any rational, justifying purpose.
ruled that that the right was to be found in the "penumbras" of 2. Dissenting opinion of Justice Douglas: The regulation
other constitutional protections. “The First Amendment has a touches on the relationship between a man and wife and
penumbra where privacy is penumbra where privacy is protected reaches into the intimacies of the marriage relationship.
from governmental intrusion.” When the State makes use of a crime and applies the

criminal sanction to man and wife, the State has entered In this case, the Court held that the right to privacy did not extend
the innermost sanctum of the home. to private, consensual sexual conduct involving same-sex sodomy.

Roe vs. Wade Dissenting Opinion of Justice Blackmun:

The statute interferes with constitutionally protected interest in

The Court held that abortions are permissible for any reason a privacy and freedom of intimate association…These rights are
woman chooses, up until the "point at which the fetus becomes protected, not because they contribute, in some direct and
‘viable,’ that is, potentially able to live outside the mother's material way, to the general public welfare, but because they form
womb. so central a part on an individual life.

1. The Constitution does not explicitly mention any right to The right of the individual to conduct intimate relationships in the
privacy but the Court has recognized that such right does intimacy of his or her own home seems to be the heart of the
exist in the Constitution. The Court deemed abortion a Constitution’s protected privacy.
fundamental right under the United States Constitution,
thereby subjecting all laws attempting to restrict it to the Lawrence vs. Texas
standard of strict scrutiny. Where certain “fundamental
rights” are involved, the Court has held that regulation In this landmark case, the court struck down the statute making it
limiting these rights may be justified only by a “compelling a crime for two persons of the same sex to engage in intimate
state interest.” sexual conduct for violation of the Due Process clause
2. The right to privacy is broad enough to encompass a
woman’s decision whether or not to terminate her The court recognizes the right to engage in intimacy. Such right of
pregnancy. But a woman’s right to terminate her pregnancy individuals to engage in private conduct is in the “exercise of their
at whatever time, in whatever way and for whatever liberty under the Due Process Clause.”
reason she alone chooses is NOT absolute. While
recognizing the right to privacy, the Court also “Liberty protects the person from unwanted government intrusions
acknowledges that some state regulation in areas protected into a dwelling or other private places.” This liberty includes the
by a right is appropriate. A state may properly assert right of individuals to enter upon relationships in the confines of
important interests in safeguarding health, in maintaining their homes and their own private lives and still retain their dignity
medical standards, and in protecting potential life. as free person.

Bowes vs. Hardwick (overruled by Lawrence vs. Texas) Board of Educators v. Earls

The Court upheld the constitutionality of a Georgia sodomy law The Court ruled that mandatory drug testing of students in
that criminalized oral and anal sex in private between consenting extracurricular activities was constitutional.

The Court held that the policy reasonably serves the School
District's important interest in detecting and preventing drug use
among its students, it is therefore constitutional. The Court REGULATION TAKING
reasoned that the Board of Education's general regulation of Power of the Police Power Eminent Domain
extracurricular activities diminished the expectation of privacy State
among students and that the Board's method of obtaining urine Objective Uphold public Public Use
samples and maintaining test results was minimally intrusive on the welfare/interest
students' limited privacy interest. “Moreover, the policy is a Just Not required Required
reasonable means of furthering the School district’s important Compensation
interest in preventing and deterring drug use among its Property Property interest is Property interest is
schoolchildren and does not violate the Fourth Amendment. Interest merely appropriated and
restricted/regulated applied to PUBLIC
Ople vs. Torres because continued USE/PURPOSE
unrestricted use would
The right to privacy being a fundamental right, the government has be injurious to the
the burden of proof to show that a statute (AO no. 308 in this case) public welfare/interest
is justified by some compelling state interest and that it is narrowly Right of Use of property by the Permanent
drawn. ownership to owner was limited, but deprivation of the
property NO aspect of the right to use own
“In no uncertain terms, we also underscores that the right to property was USED BY or property; title may
privacy does not bar all incursions into individual privacy. The right FOR the PUBLIC or may not be
is not intended to stifle scientific and technological advancements transferred to the
that enhance public service and the common good. It merely expropriating
requires that the law be narrowly focused.” Intrusions into the authority (e.g.
right must be accompanied by proper safeguards and well-defined People vs Fajardo
standards to prevent unconstitutional invasions. does not involve
Duncan vs. Glaxo Welcome transfer of title)

The Court in this case that the company policy in prohibiting

employees from having personal relationships with employees of
cometitor companies is a valid exercise of its management POLICE POWER EMINENT DOMAIN
prerogatives and not a violation of the equal protection clause. Due Process 1. there is 1. there is
Requirements “regulation” of “taking” of
II. D. PROTECTED INTEREST IN PROPERTY private property private property
(property may still (owner can no
Mere “Regulation” under the Due Process Clause vs. “Taking” of be used for other longer use the
Property via the Power of Eminent Domain

purposes) property) o police power – where the benefits he derives

2. private property 2. the taking must are only such as may arise from the
must be “imbued be for “public maintenance of a healthy economic standard of
with public use” society and is often referred to as damnum
interest” 3. there must be absque injuria
3. regulation must be “just
for public purpose compensation”
or interest
US vs. Toribio
Taking –
In this case, the Court ruled that the restriction placed upon the
use of carabao is reasonable and proper exercise of police power to
Jurisprudence: alleviate famine.
• Police power rests upon public necessity and upon the
Churchill vs. Rafferty (Police Power/Regulating Nuisances) right of the state and of the public to self-protection
• Justification of state Regulation:
In this case, the court upheld the validity of a portion of a statute o Public interest
authorizing the CIR to remove any sign, signboard, or billboard o Means are reasonably necessary for the
found by him to be offensive to the sight or otherwise a nuisance
accomplishment of the purpose
• The use of private property may be regulated or o Means/method is not unduly oppressive upon
restricted to whatever extent may be necessary to individuals
preserve inviolate the public welfare; this includes o Legislative determination of what is proper
properties offensive to the senses of smell or hearing
exercise of police power is not final or
• Billboards, which are a source of annoyance and conclusive, but is subject to court supervision
irritation to the public and interfere with the proper • Principal yardstick against which such exercise must be
enjoyment of outdoor life by the general public
measured are the due process clause and the equal
justifies their suppression or regulation to the extent
protection clause
that they interfere with the right of the public.
• State interference with the use of private property may
be exercised in three ways:
o taxation – where the individual receives the
equivalent of the tax in the form of protection
or benefit he receives from the government as
o eminent domain – where he receives the
market value of the property taken from him) People vs. Fajardo

In this case, the Court ruled that the municipal ordinance requiring The Court here ruled that the ban on transportation of carabao
prior written building permits from the mayor was null and void for under the assailed ordinance and their outright confiscation and
being oppressive and unreasonable since it permanently deprive disposal without court hearing is a violation of due process hence it
appellants of the right to use their own property. Hence, it is an invalid exercise of police power.
oversteps the bounds of police power and amounts to a taking of • The court adopted the measures laid down in the
appellants’ property without just compensation. Toribio case
• The Court found that the said ordinance fails to state • Protection general welfare is a function of police power
any policy or to set up any standard to guide or limit which both restrains and is restrained by due process,
the mayor’s action; expresses no purpose to be which requires notice and hearing
attained by requiring a permit; enumerates no • Case emphasized the need to have a lawful method to
conditions for its grant or refusal; and entirely lacks follow due process requirement
standards thus conferring upon the mayor arbitrary and • Reasons why ordinance is invalid:
unrestricted power to grant or deny the issuance of o No reasonable connection between means
building permits. employed (absolute ban on movement of
• Test of validity of municipal ordinances: carabeef) and purpose sought to be achieved
o must specify the rules and conditions to be (conservation of carabao for general welfare)
observed o Unduly oppressive since petition not given due
o must admit of the exercise of the privilege of process or opportunity to be heard in proper
all citizens alike who will comply with such court
rules and conditions
o must not admit of the exercise or of an
opportunity for the exercise of any arbitrary
discrimination by the municipal authorities Republic vs PLDT
between citizens who will so comply
• While property may be regulated in the interest of the In this case, the Court ordered the PLDT to allow the reconnection
general welfare, the state may not, under the guise of of telephone lines of the Republic.
police power, permanently divest owners of the • No cogent reason appears why Eminent Domain may be
beneficial use of their property and practically availed of to impose only a burden upon the owner of
confiscate them solely to preserve or assure the condemned property without loss of title or possession
aesthetic appearance of the community for public use subject to just compensation
• Municipality must give appellants just compensation • Case highlights that even services may be subjected to
and opportunity to be heard eminent domain

Ynot vs. IAC


• Case emphasized that COURTS have the power to

determine just compensation in the proper
Republic vs Castellvi expropriation proceedings and cannot be usurped by
legislative or executive actions
The case is an expropriation proceeding and the court discussed • Doctrine of Just Compensation means the equivalent
determination of just compensation. for value of property of the owner at the time of its
• Elements of valid “Taking” of property taking; the fair and full equivalent for the loss
o Expropriator must enter a private property sustained of the owner, which is the measure of
o Entrance must be for more than a momentary indemnity, and not whatever gain would accrue the
period expropriating entity
o Entry under warrant/color of legal authority
o Property devoted for public use
o Utilization for public use deprives him of all
beneficial employment of the property NPC vs CA
• Just compensation shall be determined as of the date
The Court here emphasized again that the basis of compensation
of filing of expropriation proceeding are (1) the price and value of the land and (2) the land’s character
at the time it was taken by the Government.
Bel-Air Assoc. vs IAC

The Court acknowledged that the opening of Orbit St. in Makati to

public access is a valid exercise of police power and warranted by
the demand of common good.
• The gate that was destroyed is a public nuisance, which
can be legally abated summarily Takings under Eminent Domain v.
• Not eminent domain but police power, since the street Takings under Social Justice Clause
was merely used , and not taken, for public access Michael Ocampo
• Loss of the home-owners’ privacy is inferior to
municipality’s effort to ease traffic The provision of the 1987 Constitution

Traditional Concept of Eminent Domain

EPZA vs Dulay
• Eminent domain is usually taken to mean as “the ultimate
The Court here ruled that the assailed decree, which eliminates right of the sovereign power to appropriate, not only public
court’s discretion in determining just compensation, is but the private property of all citizens within the territorial
unconstitutional and invalid.

sovereignty for public purpose.” (Charles River Bridge v. charter calls on the state to undertake agrarian land reform
Warren Bridge). (Art. XIII, Sec.4) and urban land reform and promote
• The 1987 Constitution expressly provides for this power but housing developments (Art XIII, Sec. 9).
imposes certain limits: “Private property shall not be taken
for public use without just compensation.” (Article 3, sec. • The Court in Sumulong v. Guerero, quoting J. Cruz’
9) textbook in political law, explained that the preceding
• However, eminent domain is one of the 3 inherent powers provisions emphasize “the stewardship concept, under
of a state, to which it owes its very existence depends. which property is supposed to be held by the individual
Actually, it is a power that need not be granted by any only as a trustee for the people in general, who are the
constitution. real owners.”
• “[T]he provisions now generally found in modern
constitutions of civilized countries to the effect that
The role of courts and the approaches in social justice cases
private property shall not be taken for public use without
compensation have their origin in the recognition of a
Re: interpreting social justice legislation
necessity for restraining the sovereign and protecting the
individual.” (Visayan Refining Co. v Camus)
“When the law is valid and clear, it simply must be applied; but
when the law can be interpreted in more ways than one, an
“Taking” under Social Justice Clause
interpretation that favors the underprivileged must be
favored.” (Federation of Free Farmers v. CA)
• “The State shall promote social justice in all phases of
national development.” (1987 Constitution, Art. 2 Sec. 10). For example, in the case of the Association of Small
Bernas says that the framers of the constitution recognizing Landowners in the Philippines, Inc. vs. Secretary of Agrarian
the urgency of promoting social justice included a whole Reform, the Court sustained the use of “other things of value”
chapter on the subject (i.e. Art. 13). 5 in paying just compensation even though traditionally the mode
of payment was in money. It admitted that a “degree of
• Hence “Congress shall give highest priority to the pragmatism” influenced its decision. It reasoned: “The Court is
enactment of measures that protect and enhance the right acutely anxious as the rest of our people to see the goal of
of all the people to human dignity, reduce social, economic agrarian reform achieved at last after the frustrations and
and political inequalities, and remove cultural iniquities by deprivations of our peasant masses during all these
diffusing wealth and political power for the common good. disappointing decades. We are aware that the invalidating the
To this end, the State shall regulate the acquisition, said section will result in the nullification of the entire
ownership, use, and disposition of property and its program, killing the farmer’s hopes even as they approach
increments.” (Art. XIII, Sec. 1) Specifically, the 1987 realization, and resurrecting the spectre of discontent and
dissent in the countryside.”
Bernas, J. The 1987 Constitution of the Republic of the
Philippines: A Commentary. Manila: Rex, 2003.

Re: WON there is arbitrariness in taking Court responded that while it is true that there was a law of the
case, it is equally true that there is constitutional grant given to
It is the courts that can determine whether property owners the State to take private property upon payment of just
have been victims of prejudice and partiality in the compensation. “Such expropriation proceedings may be
expropriation process and thus nullify the act. (De Knecht v. undertaken by the [State] not only by voluntary negotiation with
Bautista). landowners but also by taking appropriate court action or by
legislation.” (Rep. v. Knecht, JM Tuason & Co. Inc v. LTA)
Re: Just compensation
The prior court decision is no obstacle for the legislature to make
The judicial branch is also tasked with the final determination its own assessment of the circumstances that prevailed after the
of just compensation. “Neither should the court adopt a hands- decision as well as supervening events and reaching a conclusion as
off policy just because the public use has been ordained as to the propriety of undertaking the appropriation of the De Knecht
existing by decree or just compensation has been fixed.” property. (Rep. v. Knecht)
(Manotok v. NHA)
Legislative acts in the exercise of police power enjoy a
It is valid for an agency of executive branch to make an initial presumption of validity
determination of just compensation so long as the landowner is
not prevented from seeking recourse to the courts and J. Malcolm said that the “action of the elected representatives of
presenting evidence showing that the valuation done by such a the people cannot be lightly set aside. The councilors must in the
body was incorrect and unjust. (Assoc. of Small Landowners in very nature of things, be very familiar with the necessities of their
the Philippines, Inc. vs. Secretary of Agrarian Reform) particular municipalities and with all the facts and circumstances
which surround the subject and the necessitate action. .. The
Role of the Legislature Judiciary should not lightly set aside legislative action when there
is not a clear invasion of personal or property rights under the guise
Legislative fiat is one of 3 means to expropriate property of police power.

In De Knecht v. Bautista, the court ruled that the expropriation Validity of the exercise of eminent domain power
proceeding against the property of petitioner was arbitrary and
cannot receive judicial approval. There was another area where In Manotok v. NHA, SC said that to avoid constitutional infirmity
the expansion of EDSA can be undertaken, which will cost “taking” must be
government less, affect lesser homeowners, etc. But in Republic vs. α) for public use
Knecht, the same property was ordered expropriated. Apparently,
BP 340, which called for the taking of the property, was enacted β) there must be just compensation prior to taking
after the 1st De Knecht case. De Knecht argued that there was χ) due process must be observed
already a law of the case, which should not be disturbed.

Due process6 • “[T]he very foundation of the right to exercise eminent

domain is a genuine necessity and that necessity must be
Indeed it is a government prerogative, especially in view of needs of public character.” (City of Manila v. Chinese
for social justice, to exercise its eminent domain power. However, Community of Manila)
Government may not arbitrarily choose which private property to • Absolute necessity need not be established. It “is enough
take. In other words, it is subject to the exacting standards of due if the condemnor can show reasonable or practical
process. necessity, which of course, varies with the time and the
peculiar character of every case. (Manotok v. NHA)
• “A landowner is covered by the mantle of protection of • “The ‘public use’ requirement for a valid exercise of
due process affords...[I]t frowns on arbitrariness, [it is]
eminent domain is a flexible and evolving concept
the antithesis of any governmental act that smacks of
influenced by changing conditions. “ (Sumulong v.
whim or caprice, it negates state power to act in an
Guerrero) “There was a time when it was felt that a
oppressive manner.” (JM Tuason & Co. Inc v. LTA, De
literal meaning of should be attached to such
Knecht v. Bautista)
requirement. Whatever project is undertaken must be for
• “…[A]lthough due process does not always necessarily the public to enjoy, as in the case of streets and parks.”
demand that a proceeding be had before a court of law, Now, land can be expropriated and subdivided into small
it still mandates some form of proceeding wherein notice lots for transfer or resale to individuals in government
and reasonable opportunity to be heard are given to the housing projects. “It is accurate to state that at present,
owner to protect his property rights”. (Manotok v. NHA) whatever may be beneficial for the general welfare
• Hence, the PD 1669 and 1670, which were assailed in satisfies the requirement of public use.” (Sumulong,
Manotok v. NHA were invalidated because the said laws supra, quoting C.J. Enrique Fernando’s The Constitution
prescribed that in making the assessment for just of the Philippines.)
compensation the city assessor should consider the
presence of blighted communities in the Tambunting and • Examples of instances when expropriation was found to be
Sunog Apo estates, which depreciated the value of the for public use:
properties. The laws also set a price ceiling for the - CARP (Association of Small Landowners, supra)
estates, based on 1978 prices. Just compensation should - Socialized housing (Sumulong v. Guerrero)
be based on values in 1980 when the estates became
subject of expropriation.” There are other bases that • But in Luz Farms v Sec. of DAR, the court ruled that the
must be considered in determining just compensation
Constitution did not intend to include poultry and
which is the task of the courts.
livestock farms under agrarian reform. The SC recognized
that livestock production is an industry where land is not
Public character
a primary resource but only an incidental input. In fact,
95% of the investments are in fixed assets other than
For the rules of procedure in expropriation cases, see Rule land. In addition, unlike tenants in farmlands, workers in
67 Rules of Court. This is part of procedural due process. livestock farms receive minimum wages. Justice

Sarmiento, concurring, said that to hold otherwise will Police Power vis-à-vis Eminent Domain
violate the equal protection clause citing the substantial
distinctions between lands devoted to farming and lands Police power
devoted to livestock. Classes dissimilarly situated should
not be treated the same. • Police power has been characterized as the most essential,
insistent and least limitable of powers extending as it does
Just compensation “to all great public needs.” (Ermita-Malate Hotel and Motel
Operators Association, Inc. v. Mayor of Manila, Inchong v.
• “It means a fair and full equivalent payment for the loss Hernandez). Negatively put, it is “that inherent power and
sustained, which is the measure of the indemnity, not plenary power of the State to prohibit all that is hurtful to
whatever gain would accrue to the expropriating agency.” the comfort, safety and welfare of the society.” (Rubi v.
(JM Tuason & Co. Inc v. LTA, EPZA v. Dulay). It is not market Provincial Board of Mindoro)
value per se.
• The determination of just compensation and the rationale • “[T}he mere fact that some individuals in the community
behind it is done “either at the time of the actual taking of may be deprived of their business or a particular mode of
the government or at the time of the judgment of the earning a living cannot prevent the exercise of police
court, whichever came first.” (Manotok v. NHA, Rule 67 power. .. [P]ersons licensed to pursue occupations which
Sec. 4 Rules of Court) may in the public need and interest be affected by the
exercise of the police power embark in these occupations
• Form of payment. Indeed, the traditional medium of
subject to the disadvantages which may result from the
payment for just compensation is in money; however, land exercise of that power. ” (Ermita-Malate Hotel and Motel
reform is not the traditional exercise of eminent domain Operators Association, Inc. v. Mayor of Manila).
where only property of relatively limited area is taken by
the State for some public purpose. “What we deal hear is a Note that there licenses were involved in the Ermita-Malate case.
revolutionary kind of expropriation.” The agrarian reform The ordinance assailed was also considered as a valid exercise of
law covers the entire country. Government will have to police power was exercised. See the distinction between police
spend billions of pesos to implement it and considering the power and eminent domain and the nature of licenses in next
financial limitations of the government, the legislature sections.
never had an illusion that there will be enough money to
pay in cash. It is not oppressive to pay with shares of
• The test of lawful purpose and reasonable means is also
stocks, bonds, tax credits and other things of value
applicable. Hence, nn ordinance of Quezon City requiring
equivalent to the amount of compensation. (Assoc. of Small
memorial park operators to set aside at least 6% of their
Landowners in the Philippines, Inc. vs. Secretary of
cemetery for charity burial of deceased paupers was
Agrarian Reform)
declared an invalid exercise of police power and was found
to be a case of taking of property without just
compensation. The Court said there was no reasonable

relation between the order and the promotion of public demolished for public safety, or obscene materials which should be
health, morals, good order or safety, or the general welfare destroyed in the interest of public morals. The confiscation of such
of the people. (City Government of QC v Ericta) property is not compensable, unlike the taking of property under
the power of expropriation, which requires the payment of just
License, nature of compensation to the owner.” (Assoc. of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform)
Government can take away a license and increase the cost of
license fees even to prohibitive levels, if public interest
dictates so, without any constitutional violations. Agrarian reforms has features of police power and eminent domain
• “Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property Agrarian reform commingles the exercise of police power and
or a property right protected by the due process.” In the eminent domain; therefore landowners covered by it must receive
same case, the court said that a license is a mere privilege just compensation. To the extent that the agrarian reform law sets
that can be withdrawn when public interests demand it. ‘’A retention limits on landowners, the State is exercising police
license is merely a permit or privilege to do what is power. (Note that the redistribution of land was intended to quell
otherwise is unlawful, and is not a contract between the civil unrests like insurgency) But where, to carry out such
authority…granting it and the person to whom it is regulation, it becomes necessary to deprive such landowners of
granted...[i]t does not create a vested right.” (Oposa v. whatever land that they owned beyond the maximum area allowed,
Factoran). there is definitely a taking under eminent domain for which just
compensation is necessary. (Assoc. of Small Landowners in the
• Licenses for regulating non-useful occupation are incidental Philippines, Inc. vs. Secretary of Agrarian Reform)
to the exercise of police power and the right to exact fees
is may be implied from that power to regulate. In setting Geduldig v. Aiello
the fees, municipal corporations are given wider discretion
in this class of licenses (than for licenses issued to regular The exclusion of disability arising from normal pregnancy from the
business). Courts have generally upheld these because of coverage of the insurance policy in California does not amount to
the desirability of imposing restraints on individuals who invidious discrimination under the Equal Protection Clause. “The
engage in these unuseful enterprises. (Ermita-Malate Hotel classification challenged in this case relates to the asserted
Association v. City Mayor of Manila underinclusiveness of the set of risks that the State has selected to
Police power v. Eminent domain
1. California has not selected to insure all risks of employment.
The distinction between police power and eminent domain power “This Court has held that, consistently with the Equal Protection
logically precludes the application of the two at the same time (an Clause, a State ‘may take one step at a time, addressing itself to
exception is agrarian reform, see below). “Property condemned the phase of the problem which seems most acute to the legislative
under police power is noxious or intended for a noxious purpose, mind… The legislature may select one phase of one field and apply
such as a building on the verge of collapse, which should be a remedy there, neglecting the others…” (Williamson v. Lee Optical

Co.) “The Equal Protection Clause does not require that a State 2. “The burden is met only by showing at least that the
must choose between attacking every aspect of a problem or not classification serves ‘important governmental objectives and the
attacking the problem at all.” (Dandridge v. Williams) discriminatory means employed’ are ‘substantially related to the
achievement of those objectives”
It is evident that a totally comprehensive program would be
substantially more costly than the present program and would State’s primary justification: compensate for discrimination against
inevitably require state subsidy, a higher rate of employee women through educational affirmative action.
contribution, a lower scale of benefits for those suffering insured
disabilities, or some combination of these measures. There is “In limited circumstances, a gender-based classification favoring
nothing the Constitution, however, that requires the State to one sex can be justified if it intentionally and directly assists
subordinate or compromise its legitimate interests solely to create members of the sex that is disproportionately burdened… a State
a more comprehensive social insurance program than it already can evoke a compensatory purpose to justify an otherwise
has. discriminatory classification only if members of the gender
benefited by the classification actually suffer a disadvantage
2. The State has a legitimate interest in maintaining the self- related to the classification.
supporting nature of its insurance program. Similarly, it has an
interest in distributing the available resources in such a way as to Mississippi made no showing that women lacked opportunities to
keep benefit payments at an adequate level for disabilities that are obtain training in the field of nursing or to attain positions of
covered, rather than to cover all disabilities inadequately. Finally, leadership in that field when the MUW School of Nursing opened its
California has a legitimate concerning in maintaining the door or that women currently are deprived of such opportunities.
contribution rate at a level that will not unduly burden
participating employees. “The policy is invalid also because it fails the second part of the
equal protection test, for the State has made no showing that the
Mississippi University for Women, et al., v. Hogan gender based classification is substantially and directly related to
its proposed compensatory objective.
The Court applied heightened equal protection analysis on the
exclusion of men in the nursing school of MUW. “Because the Micheal M. v. Superior Court
challenged policy expressly discriminates among applicants on the
basis of gender, it is subject to scrutiny under the Equal Protection California’s statutory rape law does not violate the Equal Protection
Clause of the Fourteenth Amendment. Clause. Statute is sufficiently related to the State’s objectives.

1. “…the party seeking to uphold a statute that classifies It discriminates on the basis of sex because only females may be
individuals on the basis of their gender must carry the burden of victims, and only males may violate the section… the classification
showing an ‘exceedingly persuasive justification’ for the was ‘supported not by mere social convention but by the
classification. immutable physiological fact that it is the female exclusively who
can become pregnant… the State has a compelling interest in
preventing such pregnancies.”

the many Chinese laundries now existing, or compel their owners to

“… the court further held that the gender classification was readily pull down their present buildings and reconstruct of brick or stone,
justified as a means of identifying offender and victim. or to drive them outside the city and county of San Francisco to the
adjoining countries.
“When men and women are not in fact similarly situated in the
area covered by the legislation in question, the Equal Protection The ordinance confer… a naked and arbitrary power to give or
Clause is not violated. withhold consent, not only as to places but as to persons.

Personnel Administrator of Massachusetts v. Feeney …it divides the owners or occupiers into two classes…on one side of
which are those who are permitted to pursue their industry by the
Whether Massachusetts, in granting an absolute lifetime preference mere will and consent of the supervisors, and the other those from
to veterans, has discriminated against women in violation of the whom that consent is withheld, at their mere will and pleasure.
Equal Protection Clause of the Fourteenth Amendment.
The Fourteenth Amendment to the Constitution is not confined to
“The equal protection guarantee… does not take from the States all the protection of citizens.
power of classification.
Fragrante v. City and County of Honolulu
When a statute gender-neutral on its face is challenged on the
ground that its effects upon women are disproportionably adverse, Fragrante’s action was brought under the disparate treatment
a twofold inquiry is appropriate: theory: the employer is normally alleged to have ‘treated a person
less favorably than others because of the peron’s race, color,
• whether the statutory classification is indeed neutral in religion, sex, or national origin… The plaintiff has the initial burden
the sense that it is not gender based. (The distinction in such a case of proving by a preponderance of the evidence a
made is between veterans and non-veterans, not prima facie case of discrimination.
between men and women.)
Four factors:
• whether the adverse effects reflects invidious gender- 1. the he has an identifiable national origin
based discrimination. (“…the State intended nothing 2. that he applied and was qualified for a job for which the
more than to prefer ‘veterans’… an intent to exclude employer was seeking applicants
women from significant public jobs was not at work in 3. that he was rejected despite his qualifications
this law.) 4. that after his rejection the position remained open and the
employer continued to seek applicants from persons of
Yick Wo v. Hopkins complainant’s qualifications.

The effect of the execution of this ordinance in the manner “An adverse employment decision may be predicated upon an
indicated in the record would seem to be necessarily to close up individual’s accent when – but only when – it interferes materially
with job performance.”

Boy Scouts of America v. Dale

International School Alliance of Educators v. Quisumbing
The forced inclusion of an unwanted person in a group infringes the
“Persons who work with substantially equal qualifications, skill, group’s freedom of expressive association if the presence of that
effort and responsibility, under similar conditions, should be paid person affects in a significant way the group’s ability to advocate
similar salaries. This rule applies to the School, its “international public or private viewpoints.
character” notwithstanding.
First, associations do not have to associate for the “purpose” of
If the employer pays one employee less than the rest, it is not for disseminating a certain message in order to be entitled to the
that employee to explain why he receives less or why the others protections of the First Amendment. An association must merely
receive more. That would be adding insult to injury. The employer engage in expressive activity that could be impaired in order to be
has discriminated against that employee; it is for the employer to entitled to protection.
explain why the employees is treated undfairly.
Second, the First Amendment protects the Boy Scout’s method of
“The State, therefore, has the right and duty to regulate the expression.
relations between labor and capital. These relations are not merely
contractual but are so impressed with public interest that labor Third, the First Amendment simply does not require that every
contracts, collective bargaining agreements included, must yield to member of a group
the common good. agree on every
issue in order for
Board of Directors of Rotary International v. Rotary Club of Duarte the group’s policy PROTECTED SPEECH
to be “expressive
“…constitutional protection to freedom of association in two association”. PRIOR RESTRAINT
4. the Constitution protects against unjustified government Goodridge v.
interference with an individual’s choice to enter into and Department of
maintain certain intimate or private relationships. Public Health
(relationship among Rotary Club members is not the kind of
intimate or private relation that warrants constitutional Civil marriage anchors an ordered society by encouraging stable
protection.) relationships over transient ones…Civil marriage is at once a deeply
5. the Court has upheld the freedom of individuals to personal commitment to another human being and a highly public
associate for the purpose of engaging in protected speech celebration of the ideals of mutuality, companionship, intimacy,
or religious activities. (Evidence fails to demonstrate that fidelity, and family.
admitting women to Rotary Clubs will affect in any
significant way the existing members’ ability to carry out “…history must yield to a more fully developed understanding of
their various purposes.) the invidious quality of the discrimination.”

“For equal protection challenges, the rational basis test requires Speech, expression, and press include every form of
that ‘an impartial lawmaker could logically believe that the expression, whether oral, written, tape, or disc recorded.
classification would serve a legitimate public purpose that It also includes movies as well as what is referred to as
transcends the harm to the members of the disadvantaged class.” symbolic speech (e.g., wearing of armband as a symbol of
protest). Peaceful picketing has also been included within
Of the three rationales presented, none the meaning of speech.7
Providing a favorable setting for procreation
“Our laws on civil marriage do not privilege procreative Why is freedom of expression guaranteed by the Constitution?
heterosexual intercourse between married people above every
other from of adult intimacy and every other means of creating a * It is essential for the search for truth; the power of
family…Fertility is not a condition of marriage, nor is it grounds for thought can be tested by its acceptability in the
divorce. competition of the market (marketplace idea).8
Ensuring the optimal setting for child rearing
“The ‘best interests of the child’ standard does not turn on a * It is needed for democracy to work properly; citizen-
parent’s sexual orientation or marital status critic has to be given the information required for him to
be able to perform his civic duty.9 Prof. Roque referred
preserving scarce State and private financial resources to freedom of expression as the ultimate fiscalizer
Massachusetts marriage laws do not condition receipt of public and against the government, and stressed that it is essential
private financial benefits to married individuals on a demonstration to the search for solutions to our problems.
of financial dependence on each other.
The provision under the 1987 Constitution: * On a personal level, it promotes individual self-
realization and self-determination.10

• Blackstone: “The liberty of the press is indeed essential

to the nature of a free state: but this consists in laying
no previous restraints upon publication, and not in
freedom from censure for criminal matter when
published. Every freeman has an undoubted right to
lay what sentiments he pleases before the public: to
forbid hit is to destroy the freedom of the press: but if
Section 4, Article III
J. Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer
No law shall be passed abridging the freedom of speech, of 58 (2006 ed.) [hereinafter referred to as Reviewer].
expression, or of the press, or the right of the people peaceably to 8
J. Bernas, The 1987 Constitution of the Republic of the Philippines: A
assemble and petition the government for redress of grievances. Commentary 223 (2003 ed.) [hereinafter referred to as Commentary].
Commentary, supra.

he publishes what is improper, mischievous, or illegal, expression comes to this Court bearing a heavy
he must take the consequence of his own temerity. To presumption against its constitutional validity.”
subject the press to the restrictive power of a licenser,
as was formerly done, both before and since the 1. Jurisprudence: Bantam Books, Inc. v Sullivan,
Revolution, is to subject all freedom of sentiment to Near v Minnesota, New York Times v United
the prejudices of one man, and make him the arbitrary States.
and infallible judge or all controverted points in
learning, religion, and government. But to punish as 3. Same; same; Leading cases. In Near v Minnesota,
the law does at present any dangerous or offensive the (US) Court held the questioned statute, which
writings, which, when published, shall on a fair and authorized the state to obtain an injunction against
impartial trial be adjudged of a pernicious tendency, is the continued publication of a newspaper or
necessary for the preservation of peace and good order, magazine judicially declared to be a public
of government and religion, the only solid foundations nuisance, to be an infringement of the liberty of
of civil liberty. Thus, the will of individuals is still left the press.
free: the abuse only of that free will is the object of
legal punishment. Neither is any restraint hereby laid
upon freedom of thought or making public, of bad
1. “If we cut through the mere details of
procedure, the operation and effect of the
sentiments destructive to the ends of society, is the
statute in substance is that public authorities
crime which society corrects.”11
may bring the owner or publisher of a newspaper
Protected Speech; Prior Restraint or periodical before a judge upon a charge of
conducting a business of publishing scandalous
and defamatory matter…and unless the owner or

publisher is able and disposed to bring
• The prohibition of prior restraint is the first prohibition of competent evidence to satisfy the judge that the
• the free speech and press clause. charges are true and are published with good
motives and for justifiable ends, his newspaper
1. Prior restraint means official government or periodical is suppressed and further
restrictions on the press or other forms of publication is made punishable as a contempt.
expression in advance of actual publication or This is the essence of censorship.”12
2. However, the ponente (Hughes (CJ)), in an obiter
2. Prior restraint; Presumption of constitutional dictum, recognized that the prohibition of prior
invalidity. “Any system of prior restraints of restraint is not absolute. For instance, “’(w)hen
a nation is at war, many things that might be said

11 12
Supra at 224. 238 U.S. 697 (1931).

in time of peace are such a hindrance to its proof that publication must inevitably, directly,
effort that their utterance will not be edured so and immediately cause the occurrence of an
long as men fight and that no court could regard event kindred to imperiling the safety of a
them as protected by any constitutional right.’ transport already at sea can support even the
No one would question but that government issuance of an interim restraining order.”14
might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of 3. Stewart concurred with the decision because he
transports or the number and location of troops. could not determine whether the disclosure to
On similar grounds, the primary requirements of the public would “surely result in direct,
decency may be enforced against obscene immediate, and irreparable damage” to the
publications. The security of the community life American nation or people.15
may be protected against incitements to acts of
violence and the overthrow by force of orderly 4. Although he did not deny the possibility of
government.”13 granting an injunction nor the probability that
the publication of some of the documents would
4. Same; same; same. In New York Times v United result in “substantial damage to public
States, the (US) Court refused to grant an interests”, White concluded that the government
injunction prayed for by the government against “has not satisfied the very heavy burden which it
the continued publication by the New York Times must meet to warrant an injunction in these
and Washington Post of a study on US decision- cases, at least in the absence of express and
making policy on Vietnam. The Court ruled that appropriately limited congressional authorization
the government failed to meet the burden of for prior restraint in circumstances such as
showing justification for the enforcement of such a these.”16 Also, he stated that the government’s
restraint; hence, the presumption against its suggestion (i.e., “grave and irreparable danger”
constitutional validity was not overcome. The per as a sufficient standard for prior restraint)
curiam decision (i.e., a decision that requires no “would start the courts down a long and
discussion, but justices may opt to attach an hazardous road and I am not willing to travel at
opinion) came with 6 concurring and 3 dissenting least without congressional guidance and
opinions. direction.”
1. Black and Douglas were absolutists. Basically, no
law means no law. Period. 5. Marshall, in discussing Congress’ refusal to grant
the executive branch the power government
2. Brennan conceded that there was a narrow class contended it had (in these cases), concluded that
of exception: “only governmental allegation and 14
Supra at 726-7.
Supra at 716. Note: The first statement is from Schenck v United States, Supra at 730.
249 U.S. 47. Supra.

it is not the business of the Court “to take on and procedural safeguards for movie censorship.
itself the burden of enacting law, especially law According to this case, “a noncriminal process
that Congress has refused to pass.”17 Could which requires prior submission of a film to a
Congress pass a law authorizing this prior censor avoids constitutional infirmity only if it
restraint sought by the government? Marshall takes place under procedural safeguards
left this question open.18 designed to obviate dangers of a censorship
6. Dissenters Burger (CJ), Blackmunn, and Harlan
were appalled by the excessive haste of the 1. The burden of proving that the film is unprotected
proceedings, which left the Court no opportunity expression must rest on the censor.
to know what the facts are. The events of this 2. Any restraint imposed in advance of a final judicial
case—from initial publication to this per curiam determination on the merits must be limited to
decision—lasted no more than three weeks. preservation of the status quo for the shortest fixed
period compatible with sound judicial resolution.
5. Same; Movies and censorship. Bernas states that 3. The procedure must also assure a prompt judicial
“the preferential treatment in the matter of prior decision, to minimize the deterrent effect of an interim
restraint that has been given to the press…has not and possibly erroneous denial of a license.
been extended with equal vigor to motion pictures”
and that US jurisprudence “treats motion pictures 4. Bernas notes that the doctrine in Freedman was
differently.” not fully accepted by our Courts. In Iglesia ni
Kristo v Court of Appeals, the Court (Philippines)
1. Burstyn v Wilson (US, 1952) held that motion said that “we are not ready to hold that it is
pictures come under the constitutional unconstitutional for Congress to grant an
protection. administrative body quasi-judicial power to
preview and classify TV programs and enforce its
2. Times Film Corp. v Chicago (US, 1961) ruled that decision subject to review by our courts.”20
an ordinance requiring films to be submitted and
viewed by a board of censors prior to public
exhibition was not unconstitutional on its face.
Protected Speech; Subsequent
3. In Freedman v Maryland, the Court (US), in
reversing the appellant’s conviction for
exhibiting a motion picture without submitting it The prohibition of subsequent punishment is the second
to the censors board, set down strict standards prohibition of the free speech and press clause.
17 19
Supra at 740. 380 U.S. 51 (1965).
18 20
Commentary, supra at 229. Reviewer, supra at 62.

be a rational connection between the speech and

6. Subsequent punishment. The mere prohibition of the evil apprehended.
government interference before words are spoken
or published would be an inadequate protection of 10. Same; same; same; Sample case. In People v
the freedom of expression if the government could Perez, the Court affirmed the conviction of Perez
punish without restraint after publication.21 for seditious speech, finding that his remark—“And
the Filipinos like myself, must use bolos for cutting
7. Same. If prior restraint were all that the off Wood’s head for having recommended a bad
constitutional guarantee prohibited and thing for the Philippines.”—had a “seditious
government could impose subsequent punishment tendency” which could easily produce disaffection
without restraint, freedom of expression would be among the people and a state of feeling
“a mockery and delusion.”22 incompatible with a disposition to remain loyal to
the Government and obedient to the laws.24
8. Same; Standards for allowable subsequent
punishment. Since the freedom of expression 11. Same; same; The clear and present danger rule.
ranks in the hierarchy of constitutional rights higher As formulated by Justice Holmes, “The question in
than property (Salonga v Pano, 134 SCRA 438), the every case whether the words are used in such
norms for the regulation of expression place more circumstances and are of such a nature as to
stringent limits on state action. Jurisprudence has create a clear and present danger that they will
evolved three tests: (1) the dangerous tendency bring about the substantive evils that Congress
test, (2) the clear and present danger test, and (3) has a right to prevent.”25
the balancing of interests* test.23
The test is a question of proximity and degree.
* Note: For balancing of interests, see Free Speech and
Suffrage. 12. Same; same; same; A question of proximity and
degree. In Dennis v United States, the Court
9. Same; same; The dangerous tendency test. In the affirmed the convictions of Dennis et al. for
early stages of Philippine jurisprudence, the violating the Smith Act, which made it a crime for
accepted rule was that speech may be curtailed or any person knowingly and willfully to advocate,
punished when it “creates a dangerous tendency organize or help to organize efforts aimed at, or
which the State has the right to prevent.” All it conspire with others for the overthrow of the
requires, for speech to be punishable, is that there Government by force or violence. “Obviously, the
words cannot mean that before the Government
may act, it must wait until the putsch is about to
Commentary, supra at 225.
22 24
Reviewer, supra at 64. 45 Phil. 599 (1923).
23 25
Suipra at 64-5. Schenck v United States, 249 U.S. 47 (1919).

be executed, the plans have been laid and the

signal is awaited. If the Government is aware that According to the Court, the contents of the pamphlets they
a group aiming at its overthrow is attempting to printed and disseminated are “not (attempts) to bring
indoctrinate its members and to commit them to a about a change of administration by candid discussion, for
course whereby they will strike when the leaders no matter what my have incited the outbreak on the part
feel the circumstances permit, action by the of the defendant anarchists, the manifest purpose of such a
Government is required. The argument that there publication was to create an attempt to defeat the war
is no need for the Government to concern itself, for plans of the Government of the United States, by bringing
Government is strong, it possesses ample powers to upon the country the paralysis of a general strike, thereby
put down a rebellion, it may defeat the revolution arresting the production of all munitions and other things
with ease, needs no answer. For that is not the essential in the conduct of war.”26
question. Certainly an attempt to overthrow the
government by force, even though doomed from “…the plain purpose of their propaganda was to excite, at
the outset because of inadequate numbers or power the supreme crisis of the war, disaffection, sedition, riots,
of the revolutionists, is a sufficient evil for and, as they hoped, revolution, in this country for the
Congress to prevent. The damage which such purpose of embarrassing and if possible defeating the
attempts create both physically and politically to a military plans of the Government in Europe.”27
nation makes it impossible to measure the validity
in terms of the probability of success, or the 14. Same; same; Dangerous tendency test v Clear and
immediacy of a successful attempt…We must present danger test. According to Bernas, it is
therefore reject the contention that success or difficult to speak of preference (which of these
probability of success is the criterion.” tests does the Supreme Court prefer to use)
independently of the factual context. However, the
13. Same; same; same; same. In Abrams v United pattern of decisions seem to indicate that: (1) in
States, the Court likewise affirmed the convictions seditious speech cases, the Court appears to favor
of Abrams et al. for violating the Espionage Act, the dangerous tendency test; (2) in contempt of
which made it unlawful for any person to utter, court cases, the dangerous tendency test appears
print, write, and publish disloyal, scurrilous, and to be preferred when the court is the Supreme
abusive language about the form of Government of Court, while the clear and present danger test
the US; (language) intended to bring the form of appears to be preferred when the court involved is
Government into contempt, scorn, contumely, and an inferior court. Bernas observes that, with the
disrepute; (language) intended to incite, provoke, restoration of democracy, the clear and present
and encourage resistance to the US in the war danger test appears to be coming into favor again.28
(against Germany); and (language intended) to
urge, incite, and advocate curtailment of 26
250 U.S. 622.
production of things and products…necessary and 27
Supra at 623.
essential to the prosecution of the war. 28
Reviewer, supra at 68.
Protected Speech; “Speech Plus”: Symbolic

15. Same; same; Eastern Broadcasting Corp. v Dans,

Jr. Although the case became moot and academic,
the court still issued guidelines for the guidance of
the inferior courts and administrative tribunals
exercising quasi-judicial functions. For freedom of Symbolic speech is basically nonverbal form of expression.
expression, the salient guidelines are the following:
16. Symbolic speech; “Speech” v “Non-speech”
xxx elements.
According to U.S. v O’Brien, “when “speech” and
“(3) All forms of media, whether print or broadcast, are “non-speech” elements are combined in the same
entitled to the broad protection of the freedom of speech course of conduct, a sufficiently important
and expression clause. The test for limitations on freedom governmental interest in regulating the non-speech
of expression continues to be the clear and present danger element can justify incidental limitations on free
rule… speech. A governmental regulation is sufficiently
justified if:
“(4) The clear and present danger test, however, does not
lend itself to a simplistic and all embracing interpretation 6. it is within the constitutional power of the Government;
applicable to all utterances in all forums. 7. it furthers an important or substantial governmental
interest unrelated to the suppression of free expression;
“…the freedom of television and radio broadcasting is and
somewhat lesser in scope than the freedom accorded to 8. the incidental restriction on alleged freedom is no greater
newspaper and print media. than is essential to that interest.”30

“(5) The clear and present danger test, therefore, must 17. Same; Students’ wearing armbands as a sign of
take the particular circumstances of broadcast media into protest v School’s power to issue regulations. In
account. Tinker v Des Moines School Dist., the Court held
“(6) The freedom to comment on public affairs is essential
to the vitality of a representative democracy. - In wearing the armbands, the petitioners were quiet and
“(6) Broadcast stations deserve the special protection given They were not disruptive and did not impinge upon the
to all forms of media by the due process and freedom of rights of others. In these circumstances, their conduct was
expression clauses of the Constitution.”29 within the protection of the Free Speech Clause of the First
Amendment and the Due Process Clause of the Fourteenth.
29 30
137 SCRA 634-7. Reviewer, supra at 69, citing U.S. v O’Brien, 391 U.S. 367.

- First Amendment rights are available to teachers and The right to assembly and petition is another form of “speech
students, subject to application in light of the special plus”.
characteristics of the school environment. Content- neutral, has to do with
- A prohibition against expression of opinion, without any • Time – whether or not it was done or working or non-
evidence that the rule is necessary to avoid substantial working days
interference with school discipline or the rights of others, • Manner- conduct of expression
is not permissible under the First and Fourteenth • Place – permit from Mayors for public places, unless it be
Amendments.31 freedom parks; on private property- need only consent of
SECTION 4: 2 Levels of Scrutiny:
NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF SPEECH, a. Strict Scrutiny – when speech is given to captive audience
OF EXPRESSION, OR OF THE PRESS, OR OF THE RIGHT OF THE b. Less heightened – applied when audience is free to turn

A. PROTECTED SPEECH Just to remind you what it’s about: Primicias was not given a
Have intrinsic value on the inherent liberty of the individual permit to hold a public meeting at Plaza Miranda
2 types: Held: Mayor Fugoso only has the right to “regulate” – the discretion
1. Absolutely Protected to determine or specify the streets where the parade or procession
2. Qualified may pass or the meeting may be held; NOT to refuse or to grant the
ART. 354 RPC: permit.
a. Private Communication
b. Fair and True Report of News What’s Important in this case relative to the topic:
BORJAL V CA added: 1st: The right to freedom of speech, and to peacefully assemble and
c. Fair Commentaries on Matters of Public Interest petition the government for redress of grievances, are
US V BUSTOS fundamental personal rights of the people recognized and
d. Bona fide communication guaranteed by the constitutions of democratic countries.

The rationale: citizen – critic with “DUTY” and “RIGHT” to express But it is a settled principle growing out of the nature of well-
problems ordered civil societies that the exercise of those rights is not
absolute for it may be so regulated that it shall not be injurious to
Subtopic 4: ASSEMBLY AND PETITION the equal enjoyment of others having equal rights, nor injurious to
the rights of the community or society.
393 U.S. 503.

2nd: The power to regulate the exercise of such and other instance of disorderly conduct kasi magiging “delusion” na lang
constitutional rights is termed the sovereign “police power” which yung right to assemble & petition.
is the power to prescribe regulations, to promote the health,
morals, peace, education, good order or safety, and general Limitations –
welfare of the people. Criticism should be 1. Specific and therefore 2. Constructive,
specifying particular objectionable actuations of the government; it
Case 2: NAVARRO V VILLEGAS must be reasoned or tempered, and not of contemptuous
condemnation of the entire government set up.
Tickler: Navarro applied for a permit to hold rally at Plaza Miranda Criticism is within the range of liberty of speech unless the
on 2/26/1970 4pm-11pm. Mayor of Manila Villegas granted permit intention and effect be seditious.
to hold rally at the Sunken Gardens, at earlier time. HELD: no May be regulated (reiterated primicias)
denial of freedom of assembly, Mayor can regulate Time Place The activity should not impair the rights of others whose roots are
Manner. as deep and as equally protected by iron-clad guarantees.

J. Villamor Concurring– right is neither unlimited nor absolute. Case 3: PBM EMPLOYEES V PBM

J. Casto & J. Fernando Dissent – entitled to be accorded the utmost Tickler: PBM employees despite not being allowed by PBM
deference and respect. +the permit is parang prior restraint; proceeded to join a mass demonstration against Pasig Police abuses
walang standards to guide the licensing authority. and were dismissed from work HELD: should be reinstated, ratio:
primacy of human rights over property rights is recognized.
The Right of Assembly and Petition for Redress of Grievances Notes:
- Complement of the right to free speech The freedoms of expression and of assembly as well as the right to
- Inseparable with rights to freedom of speech and of the petition are included among the immunities reserved by the
press sovereign people, in the rhetorical aphorism of J. Holmes, to
- Cognate rights protect the ideas that we abhor or hate more than the ideas we
- An attribute of citizenship, right existed before the cherish; or as Socrates insinuated, not only to protect the minority
adoption of the Constitution, derived from laws whose who want to talk, but also to benefit the majority who refuse to
authority is acknowledged by civilized men throughout the listen.
world. It is found where civilizations exist.
The rights of free expression, free assembly and petition, are not
Guide to Interpretation – we use the “broadest scope and widest only civil rights, but also political rights, essential to man’s
latitude” cuz it is to be expected that more or less disorder will enjoyment of his life, to his happiness and to his full and
mark the public assembly of the people to protest against complete fulfillment.
grievances – because feeling is always wrought to a high pitch. It
shouldn’t be an excuse for the prosecution to seize upon every Thru these freedoms the citizens can participate not merely in the
periodic establishment of a government through their suffrage but

also in the administration of public affairs as well as in the Tickler: retired J. JBL Reyes sought a permit from the City of
discipline of abusive public officers. The citizen is accorded these Manila to hold a march and rally on Oct 26, 1983 2-5pm from
rights so that he can appeal to the appropriate governmental Luneta to gates of US Embassy, and was denied by the Mayor due to
officers or agencies for redress and protection as well as for the Vienna Convention Ordinance and fear of subversives may infiltrate
imposition of the lawful sanctions on erring public officers and the ranks of the demonstrators.
Held: no justifiable ground to deny permit because Bill of Rights
Freedom of assembly and expression occupy a preferred position will prevail over Vienna Ordinance should conflict exist (none
as they are essential to the preservation and vitality of our civil proven because 500m not measured from gate to US Embassy
and political institutions; and such “priority gives these liberties proper) and fear of serious injury cannot alone justify suppression
the sanctity and the sanction not permitting dubious intrusions.” of free speech and assembly- only clear and present danger of
substantive evil.
J. Fernando and Barredo in Gonzales V Comelec;
J. Douglas, Black and Goldberg in NY Times V Sullivan: NOTES:
Believes that the freedoms of speech and of the press as well as of The Court is called upon to protect the exercise of the cognate
peaceful assembly and of petition for redress of grievances are rights to free speech and peaceful assembly…
absolute when directed against public officials or “when
exercised in relation to our right to choose the men and women Free speech, like free press, may be identified with the liberty
by whom we shall be governed.” to discuss publicly and truthfully any matter of public concern
without censorship or punishment.
C.J. Vinzon is partial to the IMPROBABLE DANGER rule formulated
by Chief Judge Learned Hand: “Whether the gravity of the evil, There is to be then no previous restraint on the communication of
discounted by its improbability, justifies such invasion of free views or subsequent liability whether in libel suits, prosecution for
expression as is necessary to avoid the danger.” sedition, or action for damages, or contempt proceedings, unless
there be a “clear and present danger of a substantive evil that the
PBM employees were fighting for their very survival utilizing the State has a right to prevent.”
only weapons afforded them by the Constitution – the untrammeled
enjoyment of their basic human rights. The sole justification for a limitation of the exercise of this right,
To hold them in bad faith of the collective bargaining agreement so fundamental to the maintenance of democratic institutions, is
(c.b.a.) would stretch the compass of the cba to be a potent means the danger, of a character both GRAVE and IMMINENT, of a
of inhibiting speech, inflicting a moral as well as mortal wound on serious evil to public safety, public morals, public health, or any
the constitutional guarantees of free expression, of peaceful other legitimate public interest.
assembly and petition.
J. Frankfurter: Bill of Rights was the child of the enlightenment.
Case 4: JBL REYES V BAGATSING J. Roberts in Hague V CIO
“Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and,

time out of mind, have been used for purposes of assembly, Held: Bustos and the others were ACQUITTED,
communicating thoughts between citizens, and discussing public Ratio: the guarantees of free speech and a free press include the
questions. Such use of the streets and public places has from right to criticize judicial conduct. And these people did so in proper
ancient times, been a part of the privileges, immunities, rights, channels without undue publicity, believing they were right.
and liberties of citizens.”
J. Teehankee Concurring Right of Assembly – means a right on the part of the citizens to
Burden of “objective and convincing, not subjective or meet peaceably for consultation in respect to public affairs
conjectural” proof of grave and imminent danger lies on the mayor. Right to Petition- means that any person or group of persons can
apply, without fear of penalty, to the appropriate branch or office
Case 5: MALABANAN V RAMENTO of the government for a redress of grievances.

Tickler: Araneta University student council members w/ permit to Criticism does not authorize defamation.
hold meeting – held mtg longer than permit granted, in areas not
covered by said permit; and were suspended for 1 year. HELD: dahil QUALIFIED PRIVILEGE (qualified protected speech) – bona fide upon
sa freedom of assembly na guaranteed ang students, the any subject matter in which a party communicating has an interest
punishment should only be proportionate to the transgression, kaya or in reference to which he has a duty, is privileged, if made to a
Restraining Order (nakapagenroll at nakagraduate na sila), enough person having a corresponding interest or duty, although it
na yung 1 week suspension. contained criminatory matter which without this privilege would be
slanderous and actionable.
Court laid down the principles for the guidance of school Privilege destroys the presumption of malice, the onus of proving
authorities and students alike. malice then lies on the plaintiff.

The rights to peaceable assembly and free speech are guaranteed Brief Philippine History:
students of educational institutions. Freedom of speech as cherished in democratic countries was
unknown in the Philippine Islands before 1900.
Necessarily, their exercise to discuss matters affecting their
welfare or involving public interest is not to be subjected to Jose Rizal in “Filipinas Despues de Cien Años” described “the
previous restraint or subsequent punishment unless there be a reforms sine quibus non,” which the Filipinos insist upon, said:
showing of a CLEAR AND PRESENT danger to a SUBSTANTIVE EVIL “The minister… must begin by declaring the press in the Philippines
that the state has a right to prevent. free…”

Additional Case 6: PEOPLE V BUSTOS The Filipino patriots in Spain, through “La Solidaridad” exposing
Tickler: Bustos and several people sent complaint letters via the wants of the Filipino people demanded “liberty of the press, of
counsel against Justice of Peace ROMAN PUNSALAN, who charged cults, and of associations.”
them with LIBEL.

The Malolos Constitution, in its Bill of Rights, zealously guarded

freedom of speech, and press and assembly and petition.. The stress on freedom of association should be on its political
significance. If such a right were non-existent, the likelihood of a
The right is a necessary consequence of our republican institution one party government is more than a possibility. Authoritarianism
and complements the right of free speech. may become unavoidable.
The utmost scope should be afforded this freedom of association.
Quotable Quote:
Complete liberty to comment on the conduct of public men is a Douglas: “… associational rights protected by the 1st amendment
scalpel in the case of free speech. The sharp incision of its probe are much broader and cover the entire spectrum in political
relieves the abscesses of officialdom. Men in public life may suffer ideology as well as in art, in journalism, in teaching, and in
under a hostile and unjust accusation; the wound can be assuaged religion.”
with the balm of a clear conscience. A public officer must not be
too thin- skinned with reference to comment upon his official acts. LIMITS: when “contrary to law”
Which is defined still with clear & present danger rule.
Criterion for permissible restriction:
Case 1: GONZALES V COMELEC DANGEROUS TENDENCY test- if the words uttered create a
dangerous tendency which the state has a right to prevent, then
Tickler: Revised Election Code RA 4880 prohibits early nomination such words are punishable. It is sufficient if the natural tendency
of candidates in political groups and limits the period of election and probable effect of the utterance be to bring about the
campaigns or partisan activities. substantive evil which the legislative body seeks to prevent.
Held: lacked 1 vote to be declared unconstitutional, so the Court
instead just rationalized that Congress was using police power to Latter rule:
insure a free, orderly and honest election (Right of Suffrage) as CLEAR AND PRESENT DANGER rule- J. Holmes: whether the words
they believe that the longer the time ng elections= more costs & are used in such circumstances and are of such nature as to create
more violence. a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a
NOTES: question of PROXIMITY and DEGREE.
Reiterated in this case yung sa JBL Reyes V Bagatsing: • means that the EVIL CONSEQUENCE must be extremely
Free speech, like free press, may be identified with the liberty to serious
discuss publicly and truthfully any matter of public concern without • the degree of IMMINENCE extremely high
censorship or punishment. CLEAR- causal connection with the danger of substantive evil and
There is to be then no previous restraint on the communication of the utterance questioned
views or subsequent liability whether in libel suits, prosecution for PRESENT – imminent, urgent, impending, requires an unusual
sedition, or action for damages, or contempt proceedings, unless quantum of proof.
there be a “clear and present danger of a substantive evil that the • As applied in the case, requirements:
State has a right to prevent.”

5. Not only the occasion for imposition but also Held: UNCONSTITUTIONAL because 1. Comelec can only regulate
6. Limited in scope franchises to candidates NOT media practitioners themselves 2. In a
plebiscite there are NO candidates.
J. Castro sep. opinion
It is ultimately the high function and duty of the SC to locate the The people’s right to be informed would best be served by access
point of accommodation and equilibrium and draw the line to an unabridged discussion of the issues involved.
between permissible regulation and forbidden restraint.
• Factors: The limitation is still a RESTRICTION OF HIS CHOICE OF FORUM
a. value and importance of the freedom restricted where he may express his view, this form of regulation is
b. Specific thrust of the restriction tantamount to a restriction of petitioner’s freedom of expression
c. Value and importance of the public interest sought to be for no justifiable reason.
secured by legislation – nature and gravity of evil Congress
seeks to prevent Case 3: NPC V COMELEC
d. Whether restriction is reasonable and necessary
e. Whether there is some other measure less restrictive of the Tickler: Sec 11 o f RA 6466 prohibits the mass media owners from
protected freedom selling or giving free space or air time for campaign or other
political purposes. Comelec will give equal space and air time to all
J. Barredo (concurring & dissenting) I think I’m citing dissent nya: candidates. HELD: valid because 1. Limited duration 2. Limited
• When the freedoms of speech, press and peaceful assembly and scope – do not limit commentaries, etc. 3. Reasonable and Valid
redress of grievances are being exercised in relation to suffrage Objective – equalize rich and poor candidates and 4. Pervasiveness
or as a means to enjoy the inalienable right of the qualified of Radio and TV (pano print?)
citizen to vote, they are absolute and timeless.
• The 4 month period restriction is too short, and has proven to NOTES:
cause candidates to spend more; and effectively reduced the The rights of free speech and free press are not the only important
chances and practically killed the hopes of poor candidates. and relevant values even in the most democratic of polities,
(how can a poor candidate cover more than 7,000 islands of our equality of opportunity to propel oneself into public office, without
archipelago in 4 months?) regard to the level of financial resources that one may have at
one’s disposal is also an important value.
Consti Art. IX.
Tickler: Sec 19 of Comelec Resolution 2167 prohibits media men Section 4: The Commission (on elections) may, during the election
from using their media to campaign for or against the plebiscite period supervise or regulate the enjoyment or utilization of all
in the Cordillera region franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants,
special privileges, concessions granted by the Government or any

subdivision, agency, or instrumentality thereof, including any Digest: Senatorial Candidate Blo Umpar Adiong questions Comelec
government owned or controlled corporation or its subsidiary. resolution
Such supervision or regulation shall aim to ensure EQUAL Issue: WON Comelec may prohibit the posting of decals and stickers
OPPORTUNITY, TIME, AND SPACE, and the RIGHT TO REPLY, on “mobile” places?
information campaigns and forums among candidates in connection Ratio: 1st the prohibition infringes on the citizen’s fundamental
with the objective of holding free, orderly, honest, peaceful and right to free speech enshrined in the Constitution without any
credible elections. public interest substantial enough to warrant it. – amounts to
Consti ART. II 2nd overbreadth; 3rd the objective: to equalize rich and poor
Section 26: The egalitarian demand that “the State shall guarantee candidates is not impaired by posting stickers to cars- necessary
equal access to opportunities for public service and prohibit only is consent of the owner of the vehicle
political dynasties as may be defined by law.
J. Davide, Jr. concurring The qualitative significance of freedom of expression arises from
The regulation was only in manner, time and place. the fact that it is the matrix, the indispensible condition of nearly
every other freedom.
J. Padilla concurring
Valid exercise daw of police power Mutuc V COMELEC:
The preferred freedom of expression calls all the more the utmost
J. Gutierrez dissent respect when what may be curtailed is the dissemination of
It keeps voters ignorant information to make more meaningful the equally vital right of
J. Cruz dissent
Due to it amounts to prior restriction and censorship When faced with border line situations where freedom (of
expression) to speak & freedom to know (to information) are
J. Paras dissent invoked against (vs.) maintaining free and clean elections- the
For him the restrictions have no valid reason police, local officials and COMELEC should lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the
State’s power to regulate are NOT ANTAGONISTIC.
There can be no free and honest elections if in the efforts to
maintain them, the freedom to speak and the right to know are
Case 4: ADIONG V COMELEC unduly curtailed.

Since walang digest sa Deep and Profound Consti II Reviewer… We examine the limits of regulation,
J. Feliciano shows that regulation of election campaign activity
may not pass the test of validity if:

1. It is too general in its terms

2. Not limited in time and scope in its application Tickler: New Hampshire requires license plates to be embossed
3. It if restricts one’s expression of belief in a candidate or with state motto, which goes against principles of Maynard spouses
one’s opinion of his or her qualifications, (Jehovah’s Witnesses) so they covered up the motto. SC held:
4. If it cuts off the flow of media reporting freedom to speak includes the right to refrain from speaking.
5. If the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective. Notes:
The Constitutional rights of private property owners also have their
The regulation strikes at the freedom of an individual to express his origins in the First Amendment right of the property owner not to
preference and, by displaying it on his car, to convince others to be forced by the state to use his property as a forum for the
agree with him. A sticker may be furnished by a candidate but once speech of others.
the car owner agrees to have it placed in his private vehicle, the
expression becomes a statement by the owner, primarily his own
and not of anybody else. UNPROTECTED SPEECH

Subtopic 6: USE OF PRIVATE PROPERTY AS A FORUM FOR OTHERS’ There are narrowly limited classes of speech—defamatory
SPEECH (e.g. libel), fighting words, and obscenity—whose prevention and
punishment seem to be constitutionally sanctioned. The thinking is
Case 1: PRUNEYARD SHOPPING CENTER V ROBINS that these classes of speech are of slight social value and any
benefit that may be derived from them is easily outweighed by
Tickler: the mall prohibits “publicly expressive activity including social interests. (Chaplinsky vs New Hampshire)
the circulation of petitions, that’s not directly related to its
commercial purposes.” Held: Pruneyard may not prohibit free
speech and petition, pwede lang nila iregulate Time, Place, A. DEFAMATORY SPEECH
Manner. California SC was affirmed. The general rule for a speech to be considered libelous or
defamatory is:
NOTES: Libel = falsity + actual malice (uttered in full
Private pero yung character imbued with public interest dahil: knowledge of its falsity or with reckless disregard)
California SC: we do not have under consideration the property or
privacy rights of an individual homeowner or the proprietor of a Exemption: When the subject of the supposed libelous or
modest retail establishment. As a result of advertising and the lure defamatory material is a public officer. Defamatory words may be
of a congenial environment, 25,000 persons are induced to uttered against them and not be considered libelous. The reason is
congregate daily to take advantage of the numerous amenities that 1) they asked for it (“they voluntarily thrust themselves into
offered by the shopping center there. the public eye and therefore should not be thin-skinned”); 2) it’s a
matter of public interest; and 3) public figures have the
Kasama ba sa’tin to? parang hindi naman e opportunity and resources to rebut whatever is said against them.
Case 2: WOOLEY V MAYNARD (Policarpio vs Manila Times, New York Times vs Sullivan)

For liability in libel to arise then without offending press

freedom, there is this test to meet: Whether the defamatory
Policarpio vs Manila Times falsehood was made with actual malice—that is, with knowledge
Newspapers must enjoy a certain degree of discretion in that it was false or with reckless disregard of whether it was false
determining the manner in which an event should be presented to or not.
the public, and the importance to be attached thereto as a news
item, and that its presentation in a sensational manner is not per In the case at bar, the magazine—being weekly—was under
se illegal. no pressure of a daily deadline and therefore was not in haste to
publish the picture of Fidel Cruz. It should have exercised
But, to enjoy immunity, a publication containing derogatory reasonable care by cross-checking its facts. It failed to do so.
information must not only be true but also fair, and it must be
made in good faith and without any comments or remarks. Ruling: The magazine may have issued an erratum to
acknowledge and correct its error but, libel is libel, thus it was still
In the case at bar, the articles contained information made to pay Cruz.
derogatory to Policarpio and presented her in a worse predicament
than in which she in fact was. The articles were not fair and true,
and contained comment or remarks.
New York Times vs Sullivan
Ruling: Not protected. The New York Times is protected under the freedom of
speech in publishing paid advertisement, no matter if it contained
erroneous claims and facts. Said publication was not “commercial”
Lopez vs CA in the sense that it communicated information, expressed opinion,
According to Justice Learned Hand, an action for libel recited grievances, protested claimed abuses, and sought a
would lie arising from a publication of photograph if it yields a financial support on behalf of a movement. That the Times was
“grotesque, monstrous, and obscene impression” and that the paid for publishing the advertisement is as immaterial as the fact
person was “substantially enough ridiculed.” that newspapers and books are sold.

To defeat the actionability of libel, the publication must Newspapers do not forfeit the protection they enjoy under
have been done in good faith and with reasonable care [and speech freedom just because they publish paid advertisements.
diligence to ascertain the truth]. Said the Court: “Newspapers Otherwise, newspapers will be discouraged from carrying “editorial
should be given leeway and tolerance as to enable them to advertisements” and so might shut off an important outlet for the
courageously and effectively perform their important role in our promulgation of information and ideas by persons who do not
democracy. In the preparation of stories, press reporters and themselves have access to publishing facilities.
editors usually have to race with their deadlines, thus they should
not be held to account—to a point of suppression—for honest On errors: “Some degree of abuse is inseparable from the
mistakes or imperfection in the choice of words.” proper use of every thing; and in no instance is this truer than that
of the press.” Erroneous statement is inevitable in free debate.

Instead of reasonable care, the offended private individual

Moreover, criticism of official conduct does not lose its must present a clear and convincing proof that the defamatory
constitutional protection merely because it is effective criticism falsehood was published with knowledge that it was false or with
and hence diminishes their official reputations. Presence of clear reckless disregard of whether it was false or not.
and present danger of substantive evil must be proved. Actual
Malice needs to be proved if a public official wants to recover Ruling: Calculated falsehood falls outside the ambit of
damages for a defamatory falsehood relating to his official protected speech.
conduct. “Even a false statement may be deemed to make a
valuable contribution to public debate since it brings about the DISSENTING: In order for particular defamation to come within the
clearer perception and livelier impression of truth, produced by its privilege [of protected speech], there must be a determination that
collision with error.” the event was of legitimate public interest.

Rosenbloom vs Metromedia Ayer Productions vs Capulong

When the offended party is a private individual, must he be This is a case that calls for balancing of interests between
required to prove only the fact that the publisher failed to exercise freedom of expression and right of privacy—to film or not to film a
“reasonable care” in publishing defamatory falsehoods? The documentary on EDSA I with Enrile’s participation.
thinking is that, unlike a public figure, the private individual does
not have access to media to counter the defamatory material. Also, Freedom of speech and of expression includes the freedom
the private individual has not assumed the risk of defamation by to film and produce motion pictures and to exhibit such motion
thrusting himself into the public arena. pictures in theaters or to diffuse them through television. That the
film is a commercial activity is of no issue.
Modifying its ruling in New York Times vs Sullivan, the Court
said: Voluntarily or not, we are all “public” men to some degree. The right of privacy, meanwhile, is not absolute and cannot
The idea that certain “public figures” have voluntarily exposed be invoked to resist publication and dissemination of matters of
their entire lives to public inspection, while private individuals public interest. Privacy is protected only from unwarranted
have kept theirs carefully shrouded from public view is, at best, a publicity, wrongful publicizing of the private affairs and activities
legal fiction. of an individual which are outside the realm of public concern.

Accordingly, individual reputation yields to other important Applying the “balancing of interests test” and “clear and
social goals, such as freedom of the press and freedom of speech. present danger test” to the case at bar, the Court held that the
Having said this, the Court held that “reasonable care” is an elusive subject matter of the documentary is the EDSA Revolution not
standard that would place on the press or media the intolerable Enrile’s life. The Revolution is without question a matter of public
burden of guessing how a jury might assess the reasonableness of interest and Enrile’s participation must be included in it for it to be
steps taken by it to verify the accuracy of every reference to a historically accurate.
name or picture.
Moreover, the documentary had not been completed yet, so
no basis to judge its content. But Ayer Production should see to it

that the film be fairly truthful and historical in its presentation of The Court applied the following doctrine: Defamation is an
events. There must be no knowing or reckless disregard of truth in invasion of a relational interest since it involves the opinion which
depicting the participation of Enrile. others in the community may have, or tend to have, of the
offended party. The law of defamation protects the interest in
Ruling: Protected speech. reputation—the interest in acquiring, retaining, and enjoying one’s
reputation as good as one’s character and conduct warrant. The
Soliven vs Makasiar mere fact that the plaintiff’s feelings and sensibilities have been
Based on Sir Roque’s discussion: Beltran argued that what offended is not enough to create a cause of action for defamation.
he wrote about Cory was a privileged communication and, Thus, words which are merely insulting are not actionable as libel
therefore, should not be subject of litigation. For one, the subject or slander per se.
is the President—the most powerful individual in the country. What
are the odds the case will be decided based on its merits? Standard: Defamation requires that something be
communicated to a third person that may affect the opinion others
For another, to allow a libel case would produce a “chilling may have of the offended party. For an action on libel to prosper,
effect” on press freedom. therefore, the following should be present—1) injury to reputation,
2) published statement, and 3) statement defamatory to the
The Court did not rule on libel saying it’s not a trier of complainant. In short, if no one is identified in a statement, there
facts. Or that it has no basis to rule on the point of the supposed can be no libel because no one’s reputation has been injured.
“chilling effect” of the libel case.
Ruling: Protected speech.

Vitug vs Court of Appeals

MVRS Publications vs Islamic Da’wah Council Vitug argued that her article was a non-defamatory
The alleged defamatory statement here is directed at all expression of opinion. And that the privileged nature of said
Muslims. Which gives rise to the question: May an individual Muslim communication should be a ground for quashing the libel suit
or a group of Muslims file a case on behalf of all Muslims in the against her.
The Court answered in the negative, saying that Vitug’s
Said the Court: Declarations made about a large class of claims about her article—whether it is defamatory or non-
people cannot be interpreted to advert to an identified or defamatory, based on true facts or not, written with or without
identifiable individual. If the group is a very large one, then the malice—need adequate proof and proper appreciation by the trial
alleged libelous statement is considered to have no application to court and are issues that cannot be passed upon through mere
anyone in particular, since one might as well defame all mankind. arguments.
In the case at bar, for example, an individual Muslim has a
reputation that is personal, separate and distinct from the Vitug’s article is “not absolute but merely qualifiedly
community. privileged communication” and therefore actionable. In other
words, it is not enough ground for a motion to quash. It is a matter

of defense which must be proved after trial of the case on the intelligence would understand would be words and expressions
merits. which by general consent are “fighting words” when said without
a disarming smile. (Talagang kailangan disarming ang smile)
DISSENT: “Any other rule on defamation, in a national community
like ours with many, diverse cultural, social, religious, and other Applied to the New Hampshire statute: “A statute punishing
groupings, is likely to produce an unwholesome chilling effect verbal acts, carefully drawn so as not unduly to impair liberty of
upon the constitutionally protected operations of the press and expression, is not too vague for a criminal law.”
other instruments of information and education.”
Ruling: Not protected speech.
There are two types of fighting words: 1) injury-specific or
those which by their very utterance inflict injury; and 2) innate or
those which tend to incite an immediate breach of the peace. Cohen vs California
(Chaplinsky vs New Hampshire) In a municipal court, Cohen wore a jacket bearing the
words “Fuck the Draft” in protest of the ongoing Vietnam War. For
Fighting words are not protected because they are not an which he was charged with violating the California statute
essential part of the exposition of ideas and they have negligible (if prohibiting acts disturbing the peace or quiet of any neighborhood…
at all) social value. by offensive conduct.

Court: “While F*CK is commonly employed in a personally

Chaplinsky vs New Hampshire provocative fashion, in this instance it was clearly not directed to
For denouncing other religions as a racket, Chaplinsky—a the person of the hearer. No individual actually or likely to be
Jehovah’s Witness—caused a public disturbance. When arrested, he present could reasonably have regarded the words on appellant’s
called Marshal Bowering a “God-damned racketeer” and a “damned jacket as a direct personal insult.” (Let's do away with the asterisk
fascist.” He was charged with violating Chapter 378, Sec 2 of the and use the word FUCK).
Public Laws of New Hampshire—which prohibits use of offensive,
derisive, or annoying words to any other person in public. The mere presumed presence of unwitting listeners or
viewers does not serve automatically to justify curtailing all speech
The Court pointed out that there are certain well-defined capable of giving offense. Outside the sanctuary of our homes, we
and narrowly limited classes of speech which are not are often captives of and subject to objectionable speech. Besides,
constitutionally protected. These include the lewd and obscene, those in the same room with Cohen could effectively avoid
the profane, the libelous, and the insulting or “fighting words.” bombardment of their sensibilities simply by averting their eyes.
Reason: Their very utterance inflicts injury or tends to incite an
immediate breach of the peace. Ruling: Protected speech.

The word “offensive” is not to be defined in terms of what

a particular addressee thinks. The TEST is what men of common

Prurient – lascivious desire or thought, lustful, shameful or morbid

interest in nudity, sex or excretion, which goes beyond the limits of
candor in description or representation of such matters
J. Douglas and J. Black dissent:
Subtopic 3: OBSCENITY Notable lang: by these standards, punishment is inflicted for
THOUGHTS PROVOKED, not for overt acts nor antisocial conduct.
According to sir, very subjective talaga, no set standard. as applied
in the Philippines, it depends on the sole determination of the Case 2: MILLER V CALIFORNIA
Judge. “Judges become guardians of morality.”
Tickler: Miller was convicted of mailing unsolicited sexually explicit
Ni-raise din ni Pau in class yun, na sa US kasi may Jury so material. Held: conviction affirmed.
ascertainable kahit papano yung “average person, applying
contemporary community standards” NOTES:
Diniscuss din yung mas later sa Roth na decision, yung
Case 1: ROTH V US Memoirs V Mass na Obscenity test:
a.) Dominant theme applies to prurient interest
Tickler: Roth was convicted for keeping for sale obscene and b.) Patently offensive because it affronts contemporary
indecent books, magazines and publishing ads of them. (mail order standards relating to the description or representation of
business) Held: Obsenity is not an utterance that is within the sexual matters
definition of protected speech and press. c.) Utterly without redeeming social value.

And introduced a NEW OBSCENITY TEST: (eto yung inapply natin sa

NOTES: Pilipinas)
Historically- obscenity has always been unprotected. pareho ng Roth, ireiterate na rin natin dito
There is a presumption that porn is utterly without redeeming a.) Whether the AVERAGE person, applying contemporary
social value. community standards, would find that the dominant
theme of the material TAKEN AS A WHOLE appeals to
diniscuss na ang lumang test ay: prurient interest
Regina V Hicklin “effect of a single excerpt of the supposedly Pero dinagdagan:
“obscene” material upon particularly susceptible persons b.) WON the work depicts or describes in a patently offensive
way, sexual conduct specifically defined by the applicable
at pinalitan ng bagong standard: state law.
Whether the AVERAGE person, applying contemporary community c.) WON the work lacks serious LITERARY, ARTISTIC, POLITICAL,
standards, would find that the dominant theme of the material or SCIENTIFIC value.
TAKEN AS A WHOLE appeals to prurient interest • Note na pinalitan yung utterly without redeeming social
value ng lacks serious…

Case 3: GONZALES V KALAW KATIGBAK Applied clear and present danger test.

Tickler: Kapit sa Patalim was classified as “For Adults Only” by the Reviewed People V Kottinger (yung pics of indigenous people HELD:
MTRCB and was suggested to have certain portions cut/ deleted. not obscene) test “whether the tendency of the matter charged as
HELD: MTRCB do not have the power to exercise prior restraint. obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or
NOTES: other article charged as being obscene may fall.” And another test
The power of the MTRCB is limited to the classification of films. “which shocks the ordinary and common sense of men as an
indecency” “whether a picture is obscene or indecent must depend
The TEST to determine whether a motion picture exceeds the upon the circumstances of the case” and that ultimately the
bounds of permissible exercise of free speech and, therefore should question is decided by the “judgment of the aggregate sense of the
be censored, is the CLEAR AND PRESENT danger test. community reached by it.”

Pero pag TV less liberal approach kasi “pervasive”, reaches every Applied MILLER V CALIFORNIA, NEW OBSCENITY TEST.
home where there is a set.
Eto yung unang Philippine case na nag-apply pero ROTH standard
lang I think: yung sa average person applying contemporary Tickler: Communications Decency Act seek to protect minors from
standards… obscenity on the internet. HELD: overbroad, vague,


Sexual expression which is indecent but not obscene is
Tickler: Anti- smut campaign of Manila Mayor Bagatsing seized protected by the First Amendment.
without warrant publications believed to be obscene and burned
them, including Leo Pita’s Pinoy Playboy. Held: Smut is not smut The internet is not an “invasive” medium because it requires a
simply because one insists it is smut, it requires judicial series of affirmative steps more deliberate and directed than
determination. (kahit reversed and nanalo si Pita, wala namang merely turning a dial (tv or radio).
affirmative action, sunog na e- moot and academic)
There is no effective way to determine the identity or the age of a
NOTES: user who is accessing material through email, mail exploders,
It is essential for the validity of… previous restraint or censorship newsgroups or chat rooms.
that the … authority does not rely solely on his own appraisal of
what the public welfare, peace or safety may require.

The Community Standard as applied to the internet means that any The fact that distributors of allegedly obscene materials may be
communication available to a nationwide audience will be judged subjected to varying community standards in the various federal
by the standards of the community most likely to be offended by judicial districts into which they transmit the materials does not
the message. render a federal statute unconstitutional.

The effect of CDA is such that when a site is blocked for being
“indecent” or “patently offensive” the remaining content even if
not indecent cannot be viewed anymore. Imposition of
requirements (adult identification number or credit card) would
bar adults who do not have a credit card and lack the resources to
obtain one from accessing any blocked material. It burdens
communication among adults.

The CDA is punitive, a criminal statute. The CDA is a content-

based blanket restriction on speech, and as such, cannot be
properly analyzed as a form of time, place and manner regulation.

“One is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be exercised in
some other place.” Schneider V State


Tickler: pinalitan na yung CDA ng Child Online Protection Act, 1.

Nilimit yung scope into material displayed na lang on WWW hindi na
kasama chat and email 2. Nilimit into commercial transactions 3.
Nilimit yung pagclassify ng content as “harmful to minors” using
Miller V California Test. So Upheld na ng S.C.

The Court’s Jurisprudence teaches that it is the publisher’s
responsibility to abide by that community’s standards.