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Constitutional Law II Reviewer
University of the Philippines
Ultimate Constitutional Law 2 Reviewer
Prof. Roque’s Midterm Exam.
Mike. Rod. Tin. Pau. Che. Meanne. Zsa Zsa. Migs. Weng. Sheryl.
Note: You may use the sentences or paragraphs as your answer to
the exam. Remember to underline the cases and the provisions
that you will cite. Memorize provisions other than Art III which are
found in the syllabus. For Consti I questions, trust your stock
knowledge but it would really help reading the whole Consti.
Always answer intelligently, even when you’re just bluffing. You
may opt to use the ILAC form (Issue, Law, Argument, Conclusion).
Procedural Due Process
In the early history, due process was understood chiefly to the
mode of procedure which government agencies must follow; it was
understood as a guarantee of procedural fairness. Its essence was
expressed by Daniel Webster as a “law which hears before it
condemns” In the famous Dartmouth college case, Mr. Webster
argued that due process is that “which proceeds upon enquiry, and
renders judgment only after trial. It contemplates notice and
opportunity to be heard before judgment is rendered, affecting
one’s person or property”.
In the Philippine jurisprudence, there are several attempts to
define the concept of due process and many of our jurisprudence
have fused the elements of both procedural due process and
substantive due process as well as the elements of the equal
protections which make the generalized definition of the concept.
Due Process Not Always A Judicial Process
Procedural due process is not always a judicial process and
frequently, legal controversies have to be decided not by the courts
but by administrative bodies. Administrative bodies are not bound
by the finer point of judicial due process but are nevertheless
bound by the due process clause (Bernas).
Our cases include Court of Industrial Relations (Ang Tibay vs. CIR)
as an administrative court which exercises judicial and quasi-
judicial functions in the determination of disputes between
employers and employees. National Telecommunications Company
(PHILCOMSAT vs. Alcuaz), National Labor Relations Commission or
NLRC (DBP vs. NLRC) and school tribunals (Ateneo vs. CA-Board of
Discipline, Alcuaz vs. PSBA, Non vs. Judge Dames, Tinker vs. Des
Moines Community School District) also are clothed with quasi-
judicial function. It is a question of whether the body or institution
has a judicial or quasi-judicial function that makes it bound by the
due process clause. (Judicial function is synonymous to judicial
power which is the authority to settle justiciable controversies or
disputes involving rights that are legally enforceable and
demandable or the redress of wrongs for violations of such rights. It
is a determination of what the law is and what the legal rights of
the parties are with respect to a matter in controversy).
Requisites in Administrative Proceedings Which Must Exercise
Judicial Or Quasi-Judicial Functions
In Ang Tibay vs. CIR, the Court laid down cardinal requirements in
administrative proceedings which essentially exercise a judicial or
quasi-judicial function. These are:
1. the right to a hearing, which includes the right to present
one’s case and submit evidence in support thereof
2. The tribunal must consider the evidence presented
3. The decision must have something to support itself
4. The evidence must be substantial. Substantial evidence
means such a reasonable evidence as a reasonable mind
might accept as adequate to support a conclusion

5. The decision must be based on the evidence presented at
the hearting or at least contained in the record and
disclosed to the parties affected
6. The tribunal or body of any of its judges must act on its
own independent consideration of the law and facts of the
controversy and not simply accept the views of a
subordinate
7. The Board or body should, in all controversial questions,
render its decision in such manner that the parties to the
proceeding can know the various issues involved and the
reason for the decision rendered.
Also the Court has set down the procedure which educational
institutions must follow. Due process in disciplinary cases involving
students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice. The
proceedings in student discipline cases may be summary; and cross-
examination is not an essential part thereof. The minimum
standards set by the Court to satisfy the demands of procedural
due process are:
1. The students must be informed in writing of the nature and
cause of any accusation against them
2. They shall have the right to answer the charges against
them with the assistance of counsel, if desired
3. They shall be informed of the evidence against them
4. They shall have the right to adduce evidence in their own
behalf
5. The evidence must be duly considered by the investigating
committee or official designated by the school authorities
to hear and decide the case. (PSBA vs. Alcuaz)
It is a general rule that the notice and hearing are not essential to
the validity of administrative body acts in the exercise of
executive, administrative or legislative functions; but where public
administrative body acts in a judicial or quasi-judicial matter, and
its acts are particular and immediate rather than general and
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prospective, the person whose rights or property may be affected
by the action is entitled to notice and hearing (PHILCOMSAT vs.
Alcuaz).
Not Actual Hearing But The Opportunity To Be Heard
The heart of procedural due process is the need for notice and
an opportunity to be heard. Moreover, what is required is not
actual hearing but a real opportunity to be heard. Thus, one who
refuses to appear at a hearing is not thereby denied due process if
a decision is reached without a warning for him (Ateneo vs. CA).
Likewise, the requirement of due process can be satisfied by
subsequent due hearing (remember Sir Lumba’s example of the
nuclear bomb: notice may be served after detonation of the bomb).
In Banco Espanol Filipino vs. Palanca which is a case of foreclosure,
some notification of the proceedings to the non-resident owner is
essential which must prescribe the time within which appearance
must be made. This necessitates a publication or a personal notice
thru mail if the residence of the non-resident is known. This is
constructive service or notice which is a means provided by law
whereby the owner may be admonished that his property is the
subject of judicial proceedings and that it is incumbent upon him
to take such steps as he sees fit to protect it. Since property is
assumed to be in the possession of its owner, in person or by an
agent, he may be safely held to be affected with knowledge that a
proceeding has been instituted against his property. So that when
the effectiveness of the means of notification falls short,
presumption of possession takes place and the owner also has the
duty to inspect the status of his property.
Purposes of Procedural Due Process
According to Bernas, as a rule of fairness, procedural due process
helps achieve two purposes. Instrumentally, it contributes to
accuracy and thus minimizes errors in deprivations. More

intrinsically to the person who is the subject of deprivation, it
gives him a sense of rational participation in a decision that can
affect his destiny and thus enhances his dignity as a thinking
person (quotable lang).
When Is There A Violation of Due Process
It has been recently held that, while fairness is not violated in
administrative proceedings when the hearing officer is not the
same person who decides the case, there is violation of due
process when the officer who reviews a case is the same person
whose decision is on appeal. It has also been held that, while
notice and hearing are required in judicial and quasi-judicial
proceedings, they are not prerequisites in the promulgation of
general rules. But fixing rates, being a quasi-judicial process,
requires hearing (PHILCOMSAT vs. Alcuaz).
In Goldberg vs. Kelly, it was held that due process requires an
adequate hearing before termination of welfare benefits. The
constitutional challenge cannot be answered by an argument that
public assistance benefits are just a privilege and not a right. It is
crucial to consider that the termination of aid pending resolution
may deprive an eligible recipient of the very means by which to
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
judicial or quasi-judicial trial but just a full administrative review
and informal procedures such as appearing personally before the
official who determines eligibility or at the very least, the
government must show evidence to prove the need for the
termination of the benefits and disclose that to the individual
receiving them so that he may have the opportunity to counter if it
is untrue.
In Bell vs. Burson, it was stated that the suspension of licenses
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
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these licenses, once issued, may become essential in the pursuit of
livelihood as in this case. The person, whose license was suspended
because of his failure to post a security to cover the amount of
damages caused by the accident, is deprived of the chance to
proffer evidence on liability.
In Estrada vs. Sandiganbayan, it was held that there was no
violation of due process because the nature of the charges against
the petitioner is not uncertain and void merely because general
terms are used or because it employed terms that were not
defined. The Anti-Plunder law does not violate due process since it
defines the act which it purports to punish, giving the accused fair
warning of the charges against him, and can effectively interpose a
defense against on his behalf.
OLD SUBSTANTIVE DUE PROCESS
(Protection for Property Interests)
If all that the due process clause requires is proper procedure, then
life, liberty, and property can be destroyed provided proper forms
are observed. Such an interpretation, evidently, makes of the due
process clause a totally inadequate protection for personal and
property rights.
The due process clause must be interpreted both as a procedural
and a substantive guarantee. It must be a guarantee against the
exercise of arbitrary power even when the power is exercised
according to proper forms and procedure.
The requirement of substantive due process, however, is not a rigid
concept. The heart of substantive due process is the requirement
of “reasonableness,” or absence of exercise of arbitrary power.
These are necessarily relative concepts which depend on the
circumstances of every case.1
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Bernas, p.38 “Constitutional Rights and Social Demand Part II”

CALDER v BULL
(Focus on the property aspect vis-à-vis the Bill of Rights )
A resolution was passed by the Legislature of Connecticut that had
the effect of divesting the “right” that accrued to Calder and Wife
when the Court of Probate disapproved the will of Normand
Morrison executed in favor of Bull and Wife.
The resolution granted a new hearing in the court of probate. The
new hearing approved the will of Morrison.
Issue: Whether the resolution violated due process in contravention
of the Constitution.
Ruling: Due process was not violated.
The 1st decree against the will of Normand Morrison did not transfer
any vested right to Calder and Wife. A vested right means that the
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,
such right is a perfect and exclusive right. No one can have such
right before he has acquired a better right to the property than any
other person in the world.
The Resolution combined with the new hearing and the decision
took away no right vested in Calder and Wife since the decree
against the will did not vest or transfer any property right to them
in the first place.
LOCHNER v NEW YORK
Lochner was charged with violation of the labor laws of New York
for wrongfully and unlawfully permitting an employee to work more
than 60 hours in one week. The statute allegedly violated mandates
that no employee shall contract or agree to work more than 10
hours per day.
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Issue: Whether the statute is unconstitutional.
Ruling: Yes. The statute is unconstitutional.
The statute interferes with the liberty of a person and the right of
free contract between employer and employee by determining the
hours of labor in the occupation of a baker without reasonable
ground for doing so.
The general right to make a contract in relation to one’s business is
a liberty protected by the 14th amendment.2
The state may interfere with and regulate both property and
liberty rights to prevent the individual from making certain kinds
of contracts in its exercise of police power which relates to safety,
health, morals and general welfare of the society. In this instance,
the 14th amendment cannot interfere.
The trade of a baker is not an alarmingly unhealthy one that would
warrant the state’s interference with rights to labor and contract.
Doctrine: The rule must have a more direct relation, as means to
an end, and the end itself must be appropriate and legitimate,
before an act can be held to be valid which interferes with the
general right of an individual to be free in his person and in his
power to contract in relation to his own labor.
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
confinement.
Issue: Whether the statute was adopted in the reasonable and
lawful exercise of the police power of the state.
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No state can deprive any person of life, liberty or property without
due process of law.

Ruling: NO. The statute is not a reasonable and lawful exercise of
police power.
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
subject to a great variety of restraints, yet none of the exceptional
circumstances, which at times justify a limitation upon one’s right
to contract, apply in this case. (citing Adkins v Children’s Hospital
of the District of Columbia)
The right of liberty includes the right to enter into contracts and to
terminate contracts. The statute violates liberty of contract
without due process. It takes into account only the welfare of the
employee but fails to consider periods of distress in the business.
The statute creates a mandatory term in any contract entered into
by an employer. It violates right to enter into contract upon terms
which parties may agree to.
NDC and AGRIX v PHIL VETERANS
AGRIX invoked PD 1717, which extinguishes all mortgages and other
liens attaching to any of the assets of the dissolved corporations, in
order to stop the foreclosure of its assets mortgaged to PVB.
Issue: Whether PD 1717 violates the due process clause of the
constitution.
Ruling (on due process): YES. PD 1717 is a violation of due process.
The right to property is dissolved by legislative fiat without regard
to the private interest involved.
The public is not sufficiently involved to warrant the interference
of the government with the private contracts of Agrix.
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PD 1717 is an invalid exercise of police power, not being in
conformity with the traditional requirements of a lawful subject
and a lawful method. The extinguishment of the mortgage and
other liens constitutes taking without due process of law.
PEOPLE v NAZARIO
Nazario refused to pay taxes for the operation of the fishponds he
leased from the government in violation of the municipal
ordinances.
Issue: Whether the municipal ordinances are unconstitutional for
vagueness?
Ruling: NO. The municipal ordinances are not unconstitutional for
vagueness.
A statute may be said to be vague if it lacks comprehensible
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:
1. It violates due process for failing to accord persons fair notice
of the conduct to avoid;
2. It gives law enforcers unbridled discretion in carrying it out.
The assailed ordinances cannot be said to be tainted by vagueness
because it clearly provides what activity is to be avoided and to
whom the law applies.
BALACUIT v CFI
Owners of theaters assail the constitutionality of an ordinance for
being violative of due process as it orders that admission tickets of
children in movie houses and other places of amusements should be
half the price of that of adults.
Issue: Whether the ordinance is a valid exercise of police power.

Ruling: The ordinance is not a valid exercise of police power for
lack of lawful subject / lawful purpose.
The ordinance is not justified by any necessity of public interest.
The evident purpose of it is to reduce the loss in savings of parents,
in turn passing the buck to the theater owners. The contention of
the city that they are preventing the movie houses from exploiting
children is not tenable.
The means are clearly unreasonable. How can the theater
operators distinguish between a 13-year old and an 11-year old
child?
AGUSTIN v EDU
Petitioner assails the constitutionality of Letter of Instruction No.
229 which provides for the mandatory use of early warning device
for all motor vehicles. The petitioner asserts that his vehicle which
is already equipped with blinking lights could well serve as an early
warning device.
Issue: Whether LOI 229 is not unconstitutional.
Ruling: YES. LOI 229 is not unconstitutional. It is a valid exercise of
police power insofar as it promotes public safety. Early warning
devices have a clear emergency meaning, whereas blinking lights
are equivocal and would increase accidents.
New Substantive Due Process: Protection for “Liberty” Interests in
Privacy
Olmstead vs. US
Wiretapping was not an unreasonable search and seizure within
the meaning of the Fourth Amendment.
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Dissenting Opinion of Justice Brandeis:
The language of the Constitution guarantees everyone basic rights
to liberty and privacy. The Fourth3 and Fifth4 Amendments were
adopted to protect against government intrusion and “such invasion
of the sanctities of a man’s home and the privacies of life.”
The dissenting opinion of Justice Brandeis introduces as to the
“right to be let alone” as an inherent right that is protected by the
Constitution. In his words, “The makers of the Constitution
undertook to secure conditions favorable to the pursuit of
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
sensations. They conferred, as against the government, the right to
be let alone—the most comprehensive of the rights and the right
most valued by civilized men. To protect that right, every
unjustifiable intrusion by the government upon the privacy of the
individual, whatever the means employed, must be deemed a
violation of the Fourth Amendment. And the use, as evidence in a
criminal proceeding, of facts ascertained by such intrusion must be
deemed a violation of the Fifth.
Skinner vs. Oklahoma
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US Consti, 4th Amendment: The right of the people to be
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,
supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be
seized.
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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.
In the decision, the court recognized that marriage and procreation
was a fundamental right which belonged to all citizens. As such,
the government had a high burden of proof before it could
reasonably argue that it could deprive someone of it.
Please take note:
1. There are limits to the so-called ‘presumption of
constitutionality’, especially where the liberty of a person
is concerned.
2. “A law which condemns, without hearing, all the individuals
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.
3. While the state may protect itself from demonstrably
inheritable tendencies of the individual which are injurious
to the society, the most elementary notions of due process
would seem to require it to take appropriate steps to
safeguard the liberty of the individual by affording him,
before he is condemned to an irreparable injury to his
person, some opportunity to show that he is without such
inheritable tendencies.
Griswold vs. Connecticut
A Connecticut statute making it a crime to use any drug or article
to prevent conception violates the right of marital privacy which is
within the penumbra of specific guarantees of the Bill of Rights.
Although the Bill of Rights does not mention ‘privacy’ the Court
ruled that that the right was to be found in the "penumbras" of
other constitutional protections. “The First Amendment has a
penumbra where privacy is penumbra where privacy is protected
from governmental intrusion.”
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Eisenstandst vs. Baird
A statute prohibiting the distribution of contraceptives to
unmarried persons is violative of the Equal Protection Clause of
the Constitution.
In Griswold, the right to privacy was applied to marital
relationships. In this case, the Court extended this ruling to
unmarried couples, where the "right of privacy" is defined as the
right of individuals, married or single, to be free from unwanted
governmental intrusion into matters so fundamentally affecting a
person.
Poe vs. Ullman
Court did not grant relief to couples against the threatened
enforcement of Connecticut Law prohibiting the use of
Contraceptives.
Please take note:
1. In the dissenting opinion of Justice Harlan, he wrote that
“the statute making it a criminal offense for married
couples to use contraceptives is an intolerable and
unjustifiable invasion of privacy in the conduct f the most
intimate concerns of an individual’s personal life. The
statute in question deprives individuals of a substantial
measure of liberty in carrying on the most intimate of all
personal relationships, and it does so arbitrarily and
without any rational, justifying purpose.
2. Dissenting opinion of Justice Douglas: The regulation
touches on the relationship between a man and wife and
reaches into the intimacies of the marriage relationship.
When the State makes use of a crime and applies the

criminal sanction to man and wife, the State has entered
the innermost sanctum of the home.
Roe vs. Wade
The Court held that abortions are permissible for any reason a
woman chooses, up until the "point at which the fetus becomes
‘viable,’ that is, potentially able to live outside the mother's
womb.
1. The Constitution does not explicitly mention any right to
privacy but the Court has recognized that such right does
exist in the Constitution. The Court deemed abortion a
fundamental right under the United States Constitution,
thereby subjecting all laws attempting to restrict it to the
standard of strict scrutiny. Where certain “fundamental
rights” are involved, the Court has held that regulation
limiting these rights may be justified only by a “compelling
state interest.”
2. The right to privacy is broad enough to encompass a
woman’s decision whether or not to terminate her
pregnancy. But a woman’s right to terminate her pregnancy
at whatever time, in whatever way and for whatever
reason she alone chooses is NOT absolute. While
recognizing the right to privacy, the Court also
acknowledges that some state regulation in areas protected
by a right is appropriate. A state may properly assert
important interests in safeguarding health, in maintaining
medical standards, and in protecting potential life.
Bowes vs. Hardwick (overruled by Lawrence vs. Texas)
The Court upheld the constitutionality of a Georgia sodomy law
that criminalized oral and anal sex in private between consenting
adults.
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In this case, the Court held that the right to privacy did not extend
to private, consensual sexual conduct involving same-sex sodomy.
Dissenting Opinion of Justice Blackmun:
The statute interferes with constitutionally protected interest in
privacy and freedom of intimate association…These rights are
protected, not because they contribute, in some direct and
material way, to the general public welfare, but because they form
so central a part on an individual life.
The right of the individual to conduct intimate relationships in the
intimacy of his or her own home seems to be the heart of the
Constitution’s protected privacy.
Lawrence vs. Texas
In this landmark case, the court struck down the statute making it
a crime for two persons of the same sex to engage in intimate
sexual conduct for violation of the Due Process clause
The court recognizes the right to engage in intimacy. Such right of
individuals to engage in private conduct is in the “exercise of their
liberty under the Due Process Clause.”
“Liberty protects the person from unwanted government intrusions
into a dwelling or other private places.” This liberty includes the
right of individuals to enter upon relationships in the confines of
their homes and their own private lives and still retain their dignity
as free person.
Board of Educators v. Earls
The Court ruled that mandatory drug testing of students in
extracurricular activities was constitutional.
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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
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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
ART. 3 SEC. 9: PRIVATE PROPERTY SHALL NOT BE
or benefit he receives from the government as
such TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION
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
prior written building permits from the mayor was null and void for
being oppressive and unreasonable since it permanently deprive
appellants of the right to use their own property. Hence, it
oversteps the bounds of police power and amounts to a taking of
appellants’ property without just compensation.
• The Court found that the said ordinance fails to state
any policy or to set up any standard to guide or limit
the mayor’s action; expresses no purpose to be
attained by requiring a permit; enumerates no
conditions for its grant or refusal; and entirely lacks
standards thus conferring upon the mayor arbitrary and
unrestricted power to grant or deny the issuance of
building permits.
• Test of validity of municipal ordinances:
o must specify the rules and conditions to be
observed
o must admit of the exercise of the privilege of
all citizens alike who will comply with such
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
between citizens who will so comply
• While property may be regulated in the interest of the
general welfare, the state may not, under the guise of
police power, permanently divest owners of the
beneficial use of their property and practically
confiscate them solely to preserve or assure the
aesthetic appearance of the community
• Municipality must give appellants just compensation
and opportunity to be heard
Ynot vs. IAC
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The Court here ruled that the ban on transportation of carabao
under the assailed ordinance and their outright confiscation and
disposal without court hearing is a violation of due process hence it
is an invalid exercise of police power.
• The court adopted the measures laid down in the
Toribio case
• Protection general welfare is a function of police power
which both restrains and is restrained by due process,
which requires notice and hearing
• Case emphasized the need to have a lawful method to
follow due process requirement
• Reasons why ordinance is invalid:
o No reasonable connection between means
employed (absolute ban on movement of
carabeef) and purpose sought to be achieved
(conservation of carabao for general welfare)
o Unduly oppressive since petition not given due
process or opportunity to be heard in proper
court
Republic vs PLDT
In this case, the Court ordered the PLDT to allow the reconnection
of telephone lines of the Republic.
• No cogent reason appears why Eminent Domain may be
availed of to impose only a burden upon the owner of
condemned property without loss of title or possession
for public use subject to just compensation
• Case highlights that even services may be subjected to
eminent domain

Republic vs Castellvi
The case is an expropriation proceeding and the court discussed
determination of just compensation.
• Elements of valid “Taking” of property
o Expropriator must enter a private property
o Entrance must be for more than a momentary
period
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
• Just compensation shall be determined as of the date
of filing of expropriation proceeding
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
• Not eminent domain but police power, since the street
was merely used , and not taken, for public access
• Loss of the home-owners’ privacy is inferior to
municipality’s effort to ease traffic
EPZA vs Dulay
The Court here ruled that the assailed decree, which eliminates
court’s discretion in determining just compensation, is
unconstitutional and invalid.
1
• Case emphasized that COURTS have the power to
determine just compensation in the proper
expropriation proceedings and cannot be usurped by
legislative or executive actions
• Doctrine of Just Compensation means the equivalent
for value of property of the owner at the time of its
taking; the fair and full equivalent for the loss
sustained of the owner, which is the measure of
indemnity, and not whatever gain would accrue the
expropriating entity
NPC vs CA
The Court here emphasized again that the basis of compensation
are (1) the price and value of the land and (2) the land’s character
at the time it was taken by the Government.
Takings under Eminent Domain v.
Takings under Social Justice Clause
Michael Ocampo
The provision of the 1987 Constitution
Traditional Concept of Eminent Domain
• Eminent domain is usually taken to mean as “the ultimate
right of the sovereign power to appropriate, not only public
but the private property of all citizens within the territorial

sovereignty for public purpose.” (Charles River Bridge v.
Warren Bridge).
• The 1987 Constitution expressly provides for this power but
imposes certain limits: “Private property shall not be taken
for public use without just compensation.” (Article 3, sec.
9)
• However, eminent domain is one of the 3 inherent powers
of a state, to which it owes its very existence depends.
Actually, it is a power that need not be granted by any
constitution.
• “[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
necessity for restraining the sovereign and protecting the
individual.” (Visayan Refining Co. v Camus)
“Taking” under Social Justice Clause
• “The State shall promote social justice in all phases of
national development.” (1987 Constitution, Art. 2 Sec. 10).
Bernas says that the framers of the constitution recognizing
the urgency of promoting social justice included a whole
chapter on the subject (i.e. Art. 13). 5
• Hence “Congress shall give highest priority to the
enactment of measures that protect and enhance the right
of all the people to human dignity, reduce social, economic
and political inequalities, and remove cultural iniquities by
diffusing wealth and political power for the common good.
To this end, the State shall regulate the acquisition,
ownership, use, and disposition of property and its
increments.” (Art. XIII, Sec. 1) Specifically, the 1987
5
Bernas, J. The 1987 Constitution of the Republic of the
Philippines: A Commentary. Manila: Rex, 2003.
1
charter calls on the state to undertake agrarian land reform
(Art. XIII, Sec.4) and urban land reform and promote
housing developments (Art XIII, Sec. 9).
• The Court in Sumulong v. Guerero, quoting J. Cruz’
textbook in political law, explained that the preceding
provisions emphasize “the stewardship concept, under
which property is supposed to be held by the individual
only as a trustee for the people in general, who are the
real owners.”
Re: interpreting social justice legislation
“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
interpretation that favors the underprivileged must be
favored.” (Federation of Free Farmers v. CA)
For example, in the case of the Association of Small
Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform, the Court sustained the use of “other things of value”
in paying just compensation even though traditionally the mode
of payment was in money. It admitted that a “degree of
pragmatism” influenced its decision. It reasoned: “The Court is
acutely anxious as the rest of our people to see the goal of
agrarian reform achieved at last after the frustrations and
deprivations of our peasant masses during all these
disappointing decades. We are aware that the invalidating the
said section will result in the nullification of the entire
program, killing the farmer’s hopes even as they approach
realization, and resurrecting the spectre of discontent and
dissent in the countryside.”

Re: WON there is arbitrariness in taking
It is the courts that can determine whether property owners
have been victims of prejudice and partiality in the
expropriation process and thus nullify the act. (De Knecht v.
Bautista).
Re: Just compensation
The judicial branch is also tasked with the final determination
of just compensation. “Neither should the court adopt a hands-
off policy just because the public use has been ordained as
existing by decree or just compensation has been fixed.”
(Manotok v. NHA)
It is valid for an agency of executive branch to make an initial
determination of just compensation so long as the landowner is
not prevented from seeking recourse to the courts and
presenting evidence showing that the valuation done by such a
body was incorrect and unjust. (Assoc. of Small Landowners in
the Philippines, Inc. vs. Secretary of Agrarian Reform)
Role of the Legislature
Legislative fiat is one of 3 means to expropriate property
In De Knecht v. Bautista, the court ruled that the expropriation
proceeding against the property of petitioner was arbitrary and
cannot receive judicial approval. There was another area where
the expansion of EDSA can be undertaken, which will cost
government less, affect lesser homeowners, etc. But in Republic vs.
Knecht, the same property was ordered expropriated. Apparently,
BP 340, which called for the taking of the property, was enacted
after the 1st De Knecht case. De Knecht argued that there was
already a law of the case, which should not be disturbed.
1
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
the State to take private property upon payment of just
compensation. “Such expropriation proceedings may be
undertaken by the [State] not only by voluntary negotiation with
landowners but also by taking appropriate court action or by
legislation.” (Rep. v. Knecht, JM Tuason & Co. Inc v. LTA)
The prior court decision is no obstacle for the legislature to make
its own assessment of the circumstances that prevailed after the
decision as well as supervening events and reaching a conclusion as
to the propriety of undertaking the appropriation of the De Knecht
property. (Rep. v. Knecht)
Legislative acts in the exercise of police power enjoy a
presumption of validity
J. Malcolm said that the “action of the elected representatives of
the people cannot be lightly set aside. The councilors must in the
very nature of things, be very familiar with the necessities of their
particular municipalities and with all the facts and circumstances
which surround the subject and the necessitate action. .. The
Judiciary should not lightly set aside legislative action when there
is not a clear invasion of personal or property rights under the guise
of police power.
Validity of the exercise of eminent domain power
In Manotok v. NHA, SC said that to avoid constitutional infirmity
“taking” must be
α) for public use
β) there must be just compensation prior to taking
χ) due process must be observed

Due process6
Indeed it is a government prerogative, especially in view of needs
for social justice, to exercise its eminent domain power. However,
Government may not arbitrarily choose which private property to
take. In other words, it is subject to the exacting standards of due
process.
• “A landowner is covered by the mantle of protection of
due process affords...[I]t frowns on arbitrariness, [it is]
the antithesis of any governmental act that smacks of
whim or caprice, it negates state power to act in an
oppressive manner.” (JM Tuason & Co. Inc v. LTA, De
Knecht v. Bautista)
• “…[A]lthough due process does not always necessarily
demand that a proceeding be had before a court of law,
it still mandates some form of proceeding wherein notice
and reasonable opportunity to be heard are given to the
owner to protect his property rights”. (Manotok v. NHA)
• Hence, the PD 1669 and 1670, which were assailed in
Manotok v. NHA were invalidated because the said laws
prescribed that in making the assessment for just
compensation the city assessor should consider the
presence of blighted communities in the Tambunting and
Sunog Apo estates, which depreciated the value of the
properties. The laws also set a price ceiling for the
estates, based on 1978 prices. Just compensation should
be based on values in 1980 when the estates became
subject of expropriation.” There are other bases that
must be considered in determining just compensation
which is the task of the courts.
Public character
6
For the rules of procedure in expropriation cases, see Rule
67 Rules of Court. This is part of procedural due process.
1
• “[T]he very foundation of the right to exercise eminent
domain is a genuine necessity and that necessity must be
of public character.” (City of Manila v. Chinese
Community of Manila)
• Absolute necessity need not be established. It “is enough
if the condemnor can show reasonable or practical
necessity, which of course, varies with the time and the
peculiar character of every case. (Manotok v. NHA)
• “The ‘public use’ requirement for a valid exercise of
eminent domain is a flexible and evolving concept
influenced by changing conditions. “ (Sumulong v.
Guerrero) “There was a time when it was felt that a
literal meaning of should be attached to such
requirement. Whatever project is undertaken must be for
the public to enjoy, as in the case of streets and parks.”
Now, land can be expropriated and subdivided into small
lots for transfer or resale to individuals in government
housing projects. “It is accurate to state that at present,
whatever may be beneficial for the general welfare
satisfies the requirement of public use.” (Sumulong,
supra, quoting C.J. Enrique Fernando’s The Constitution
of the Philippines.)
• Examples of instances when expropriation was found to be
for public use:
- CARP (Association of Small Landowners, supra)
- Socialized housing (Sumulong v. Guerrero)
• But in Luz Farms v Sec. of DAR, the court ruled that the
Constitution did not intend to include poultry and
livestock farms under agrarian reform. The SC recognized
that livestock production is an industry where land is not
a primary resource but only an incidental input. In fact,
95% of the investments are in fixed assets other than
land. In addition, unlike tenants in farmlands, workers in
livestock farms receive minimum wages. Justice

Sarmiento, concurring, said that to hold otherwise will
violate the equal protection clause citing the substantial
distinctions between lands devoted to farming and lands
devoted to livestock. Classes dissimilarly situated should
not be treated the same.
Just compensation
• “It means a fair and full equivalent payment for the loss
sustained, which is the measure of the indemnity, not
whatever gain would accrue to the expropriating agency.”
(JM Tuason & Co. Inc v. LTA, EPZA v. Dulay). It is not market
value per se.
• The determination of just compensation and the rationale
behind it is done “either at the time of the actual taking of
the government or at the time of the judgment of the
court, whichever came first.” (Manotok v. NHA, Rule 67
Sec. 4 Rules of Court)
• Form of payment. Indeed, the traditional medium of
payment for just compensation is in money; however, land
reform is not the traditional exercise of eminent domain
where only property of relatively limited area is taken by
the State for some public purpose. “What we deal hear is a
revolutionary kind of expropriation.” The agrarian reform
law covers the entire country. Government will have to
spend billions of pesos to implement it and considering the
financial limitations of the government, the legislature
never had an illusion that there will be enough money to
pay in cash. It is not oppressive to pay with shares of
stocks, bonds, tax credits and other things of value
equivalent to the amount of compensation. (Assoc. of Small
Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform)
1
Police Power vis-à-vis Eminent Domain
Police power
• Police power has been characterized as the most essential,
insistent and least limitable of powers extending as it does
“to all great public needs.” (Ermita-Malate Hotel and Motel
Operators Association, Inc. v. Mayor of Manila, Inchong v.
Hernandez). Negatively put, it is “that inherent power and
plenary power of the State to prohibit all that is hurtful to
the comfort, safety and welfare of the society.” (Rubi v.
Provincial Board of Mindoro)
• “[T}he mere fact that some individuals in the community
may be deprived of their business or a particular mode of
earning a living cannot prevent the exercise of police
power. .. [P]ersons licensed to pursue occupations which
may in the public need and interest be affected by the
exercise of the police power embark in these occupations
subject to the disadvantages which may result from the
exercise of that power. ” (Ermita-Malate Hotel and Motel
Operators Association, Inc. v. Mayor of Manila).
Note that there licenses were involved in the Ermita-Malate case.
The ordinance assailed was also considered as a valid exercise of
police power was exercised. See the distinction between police
power and eminent domain and the nature of licenses in next
sections.
• The test of lawful purpose and reasonable means is also
applicable. Hence, nn ordinance of Quezon City requiring
memorial park operators to set aside at least 6% of their
cemetery for charity burial of deceased paupers was
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
health, morals, good order or safety, or the general welfare
of the people. (City Government of QC v Ericta)
License, nature of
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.
• “Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property
or a property right protected by the due process.” In the
same case, the court said that a license is a mere privilege
that can be withdrawn when public interests demand it. ‘’A
license is merely a permit or privilege to do what is
otherwise is unlawful, and is not a contract between the
authority…granting it and the person to whom it is
granted...[i]t does not create a vested right.” (Oposa v.
Factoran).
• Licenses for regulating non-useful occupation are incidental
to the exercise of police power and the right to exact fees
is may be implied from that power to regulate. In setting
the fees, municipal corporations are given wider discretion
in this class of licenses (than for licenses issued to regular
business). Courts have generally upheld these because of
the desirability of imposing restraints on individuals who
engage in these unuseful enterprises. (Ermita-Malate Hotel
Association v. City Mayor of Manila
Police power v. Eminent domain
The distinction between police power and eminent domain power
logically precludes the application of the two at the same time (an
exception is agrarian reform, see below). “Property condemned
under police power is noxious or intended for a noxious purpose,
such as a building on the verge of collapse, which should be
1
demolished for public safety, or obscene materials which should be
destroyed in the interest of public morals. The confiscation of such
property is not compensable, unlike the taking of property under
the power of expropriation, which requires the payment of just
compensation to the owner.” (Assoc. of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform)
Agrarian reforms has features of police power and eminent domain
Agrarian reform commingles the exercise of police power and
eminent domain; therefore landowners covered by it must receive
just compensation. To the extent that the agrarian reform law sets
retention limits on landowners, the State is exercising police
power. (Note that the redistribution of land was intended to quell
civil unrests like insurgency) But where, to carry out such
regulation, it becomes necessary to deprive such landowners of
whatever land that they owned beyond the maximum area allowed,
there is definitely a taking under eminent domain for which just
compensation is necessary. (Assoc. of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform)
Geduldig v. Aiello
The exclusion of disability arising from normal pregnancy from the
coverage of the insurance policy in California does not amount to
invidious discrimination under the Equal Protection Clause. “The
classification challenged in this case relates to the asserted
underinclusiveness of the set of risks that the State has selected to
insure.”
1. California has not selected to insure all risks of employment.
“This Court has held that, consistently with the Equal Protection
Clause, a State ‘may take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legislative
mind… The legislature may select one phase of one field and apply
a remedy there, neglecting the others…” (Williamson v. Lee Optical

Co.) “The Equal Protection Clause does not require that a State
must choose between attacking every aspect of a problem or not
attacking the problem at all.” (Dandridge v. Williams)
It is evident that a totally comprehensive program would be
substantially more costly than the present program and would
inevitably require state subsidy, a higher rate of employee
contribution, a lower scale of benefits for those suffering insured
disabilities, or some combination of these measures. There is
nothing the Constitution, however, that requires the State to
subordinate or compromise its legitimate interests solely to create
a more comprehensive social insurance program than it already
has.
2. The State has a legitimate interest in maintaining the self-
supporting nature of its insurance program. Similarly, it has an
interest in distributing the available resources in such a way as to
keep benefit payments at an adequate level for disabilities that are
covered, rather than to cover all disabilities inadequately. Finally,
California has a legitimate concerning in maintaining the
contribution rate at a level that will not unduly burden
participating employees.
Mississippi University for Women, et al., v. Hogan
The Court applied heightened equal protection analysis on the
exclusion of men in the nursing school of MUW. “Because the
challenged policy expressly discriminates among applicants on the
basis of gender, it is subject to scrutiny under the Equal Protection
Clause of the Fourteenth Amendment.
1. “…the party seeking to uphold a statute that classifies
individuals on the basis of their gender must carry the burden of
showing an ‘exceedingly persuasive justification’ for the
classification.
1
2. “The burden is met only by showing at least that the
classification serves ‘important governmental objectives and the
discriminatory means employed’ are ‘substantially related to the
achievement of those objectives”
State’s primary justification: compensate for discrimination against
women through educational affirmative action.
“In limited circumstances, a gender-based classification favoring
one sex can be justified if it intentionally and directly assists
members of the sex that is disproportionately burdened… a State
can evoke a compensatory purpose to justify an otherwise
discriminatory classification only if members of the gender
benefited by the classification actually suffer a disadvantage
related to the classification.
Mississippi made no showing that women lacked opportunities to
obtain training in the field of nursing or to attain positions of
leadership in that field when the MUW School of Nursing opened its
door or that women currently are deprived of such opportunities.
“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
gender based classification is substantially and directly related to
its proposed compensatory objective.
Micheal M. v. Superior Court
California’s statutory rape law does not violate the Equal Protection
Clause. Statute is sufficiently related to the State’s objectives.
It discriminates on the basis of sex because only females may be
victims, and only males may violate the section… the classification
was ‘supported not by mere social convention but by the
immutable physiological fact that it is the female exclusively who
can become pregnant… the State has a compelling interest in
preventing such pregnancies.”

“… the court further held that the gender classification was readily
justified as a means of identifying offender and victim.
“When men and women are not in fact similarly situated in the
area covered by the legislation in question, the Equal Protection
Clause is not violated.
Personnel Administrator of Massachusetts v. Feeney
Whether Massachusetts, in granting an absolute lifetime preference
to veterans, has discriminated against women in violation of the
Equal Protection Clause of the Fourteenth Amendment.
“The equal protection guarantee… does not take from the States all
power of classification.
When a statute gender-neutral on its face is challenged on the
ground that its effects upon women are disproportionably adverse,
a twofold inquiry is appropriate:
• whether the statutory classification is indeed neutral in
the sense that it is not gender based. (The distinction
made is between veterans and non-veterans, not
between men and women.)
• whether the adverse effects reflects invidious gender-
based discrimination. (“…the State intended nothing
more than to prefer ‘veterans’… an intent to exclude
women from significant public jobs was not at work in
this law.)
Yick Wo v. Hopkins
The effect of the execution of this ordinance in the manner
indicated in the record would seem to be necessarily to close up
1
the many Chinese laundries now existing, or compel their owners to
pull down their present buildings and reconstruct of brick or stone,
or to drive them outside the city and county of San Francisco to the
adjoining countries.
The ordinance confer… a naked and arbitrary power to give or
withhold consent, not only as to places but as to persons.
…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
mere will and consent of the supervisors, and the other those from
whom that consent is withheld, at their mere will and pleasure.
The Fourteenth Amendment to the Constitution is not confined to
the protection of citizens.
Fragrante v. City and County of Honolulu
Fragrante’s action was brought under the disparate treatment
theory: the employer is normally alleged to have ‘treated a person
less favorably than others because of the peron’s race, color,
religion, sex, or national origin… The plaintiff has the initial burden
in such a case of proving by a preponderance of the evidence a
prima facie case of discrimination.
Four factors:
1. the he has an identifiable national origin
2. that he applied and was qualified for a job for which the
employer was seeking applicants
3. that he was rejected despite his qualifications
4. that after his rejection the position remained open and the
employer continued to seek applicants from persons of
complainant’s qualifications.
“An adverse employment decision may be predicated upon an
individual’s accent when – but only when – it interferes materially
with job performance.”
 2

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
FREEDOM OF EXPRESSION
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
distinct senses. SUBSEQUENT PUNISHMENT
SYMBOLIC SPEECH
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
that ‘an impartial lawmaker could logically believe that the
classification would serve a legitimate public purpose that
transcends the harm to the members of the disadvantaged class.”
Of the three rationales presented, none
Providing a favorable setting for procreation
“Our laws on civil marriage do not privilege procreative
heterosexual intercourse between married people above every
other from of adult intimacy and every other means of creating a
family…Fertility is not a condition of marriage, nor is it grounds for
divorce.
Ensuring the optimal setting for child rearing
“The ‘best interests of the child’ standard does not turn on a
parent’s sexual orientation or marital status
preserving scarce State and private financial resources
Massachusetts marriage laws do not condition receipt of public and
private financial benefits to married individuals on a demonstration
of financial dependence on each other.
The provision under the 1987 Constitution:
Section 4, Article III
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
2
Speech, expression, and press include every form of
expression, whether oral, written, tape, or disc recorded.
It also includes movies as well as what is referred to as
symbolic speech (e.g., wearing of armband as a symbol of
protest). Peaceful picketing has also been included within
the meaning of speech.7
Why is freedom of expression guaranteed by the Constitution?
* It is essential for the search for truth; the power of
thought can be tested by its acceptability in the
competition of the market (marketplace idea).8
* It is needed for democracy to work properly; citizen-
critic has to be given the information required for him to
be able to perform his civic duty.9 Prof. Roque referred
to freedom of expression as the ultimate fiscalizer
against the government, and stressed that it is essential
to the search for solutions to our problems.
* 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
7
J. Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer
58 (2006 ed.) [hereinafter referred to as Reviewer].
8
J. Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary 223 (2003 ed.) [hereinafter referred to as Commentary].
9
Commentary, supra.
10
Supra.

he publishes what is improper, mischievous, or illegal,
he must take the consequence of his own temerity. To
subject the press to the restrictive power of a licenser,
as was formerly done, both before and since the
Revolution, is to subject all freedom of sentiment to
the prejudices of one man, and make him the arbitrary
and infallible judge or all controverted points in
learning, religion, and government. But to punish as
the law does at present any dangerous or offensive
writings, which, when published, shall on a fair and
impartial trial be adjudged of a pernicious tendency, is
necessary for the preservation of peace and good order,
of government and religion, the only solid foundations
of civil liberty. Thus, the will of individuals is still left
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
sentiments destructive to the ends of society, is the
crime which society corrects.”11
Protected Speech; Prior Restraint
•
• The prohibition of prior restraint is the first prohibition of
• the free speech and press clause.
1. Prior restraint means official government
restrictions on the press or other forms of
expression in advance of actual publication or
dissemination.
2. Prior restraint; Presumption of constitutional
invalidity. “Any system of prior restraints of
11
Supra at 224.
2
expression comes to this Court bearing a heavy
presumption against its constitutional validity.”
1. Jurisprudence: Bantam Books, Inc. v Sullivan,
Near v Minnesota, New York Times v United
States.
3. Same; same; Leading cases. In Near v Minnesota,
the (US) Court held the questioned statute, which
authorized the state to obtain an injunction against
the continued publication of a newspaper or
magazine judicially declared to be a public
nuisance, to be an infringement of the liberty of
the press.
1. “If we cut through the mere details of
procedure, the operation and effect of the
statute in substance is that public authorities
may bring the owner or publisher of a newspaper
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
competent evidence to satisfy the judge that the
charges are true and are published with good
motives and for justifiable ends, his newspaper
or periodical is suppressed and further
publication is made punishable as a contempt.
This is the essence of censorship.”12
2. However, the ponente (Hughes (CJ)), in an obiter
dictum, recognized that the prohibition of prior
restraint is not absolute. For instance, “’(w)hen
a nation is at war, many things that might be said
12
238 U.S. 697 (1931).

in time of peace are such a hindrance to its
effort that their utterance will not be edured so
long as men fight and that no court could regard
them as protected by any constitutional right.’
No one would question but that government
might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of
transports or the number and location of troops.
On similar grounds, the primary requirements of
decency may be enforced against obscene
publications. The security of the community life
may be protected against incitements to acts of
violence and the overthrow by force of orderly
government.”13
4. Same; same; same. In New York Times v United
States, the (US) Court refused to grant an
injunction prayed for by the government against
the continued publication by the New York Times
and Washington Post of a study on US decision-
making policy on Vietnam. The Court ruled that
the government failed to meet the burden of
showing justification for the enforcement of such a
restraint; hence, the presumption against its
constitutional validity was not overcome. The per
curiam decision (i.e., a decision that requires no
discussion, but justices may opt to attach an
opinion) came with 6 concurring and 3 dissenting
opinions.
1. Black and Douglas were absolutists. Basically, no
law means no law. Period.
2. Brennan conceded that there was a narrow class
of exception: “only governmental allegation and
13
Supra at 716. Note: The first statement is from Schenck v United States,
249 U.S. 47.
2
proof that publication must inevitably, directly,
and immediately cause the occurrence of an
event kindred to imperiling the safety of a
transport already at sea can support even the
issuance of an interim restraining order.”14
3. Stewart concurred with the decision because he
could not determine whether the disclosure to
the public would “surely result in direct,
immediate, and irreparable damage” to the
American nation or people.15
4. Although he did not deny the possibility of
granting an injunction nor the probability that
the publication of some of the documents would
result in “substantial damage to public
interests”, White concluded that the government
“has not satisfied the very heavy burden which it
must meet to warrant an injunction in these
cases, at least in the absence of express and
appropriately limited congressional authorization
for prior restraint in circumstances such as
these.”16 Also, he stated that the government’s
suggestion (i.e., “grave and irreparable danger”
as a sufficient standard for prior restraint)
“would start the courts down a long and
hazardous road and I am not willing to travel at
least without congressional guidance and
direction.”
5. Marshall, in discussing Congress’ refusal to grant
the executive branch the power government
contended it had (in these cases), concluded that
14
Supra at 726-7.
15
Supra at 730.
16
Supra.

it is not the business of the Court “to take on
itself the burden of enacting law, especially law
that Congress has refused to pass.”17 Could
Congress pass a law authorizing this prior
restraint sought by the government? Marshall
left this question open.18
6. Dissenters Burger (CJ), Blackmunn, and Harlan
were appalled by the excessive haste of the
proceedings, which left the Court no opportunity
to know what the facts are. The events of this
case—from initial publication to this per curiam
decision—lasted no more than three weeks.
5. Same; Movies and censorship. Bernas states that
“the preferential treatment in the matter of prior
restraint that has been given to the press…has not
been extended with equal vigor to motion pictures”
and that US jurisprudence “treats motion pictures
differently.”
1. Burstyn v Wilson (US, 1952) held that motion
pictures come under the constitutional
protection.
2. Times Film Corp. v Chicago (US, 1961) ruled that
an ordinance requiring films to be submitted and
viewed by a board of censors prior to public
exhibition was not unconstitutional on its face.
3. In Freedman v Maryland, the Court (US), in
reversing the appellant’s conviction for
exhibiting a motion picture without submitting it
to the censors board, set down strict standards
17
Supra at 740.
18
Commentary, supra at 229.
2
and procedural safeguards for movie censorship.
According to this case, “a noncriminal process
which requires prior submission of a film to a
censor avoids constitutional infirmity only if it
takes place under procedural safeguards
designed to obviate dangers of a censorship
system.”19
1. The burden of proving that the film is unprotected
expression must rest on the censor.
2. Any restraint imposed in advance of a final judicial
determination on the merits must be limited to
preservation of the status quo for the shortest fixed
period compatible with sound judicial resolution.
3. The procedure must also assure a prompt judicial
decision, to minimize the deterrent effect of an interim
and possibly erroneous denial of a license.
4. Bernas notes that the doctrine in Freedman was
not fully accepted by our Courts. In Iglesia ni
Kristo v Court of Appeals, the Court (Philippines)
said that “we are not ready to hold that it is
unconstitutional for Congress to grant an
administrative body quasi-judicial power to
preview and classify TV programs and enforce its
decision subject to review by our courts.”20
Protected Speech; Subsequent
The prohibition of subsequent punishment is the second
prohibition of the free speech and press clause.
19
380 U.S. 51 (1965).
20
Reviewer, supra at 62.

6. Subsequent punishment. The mere prohibition of
government interference before words are spoken
or published would be an inadequate protection of
the freedom of expression if the government could
punish without restraint after publication.21
7. Same. If prior restraint were all that the
constitutional guarantee prohibited and
government could impose subsequent punishment
without restraint, freedom of expression would be
“a mockery and delusion.”22
8. Same; Standards for allowable subsequent
punishment. Since the freedom of expression
ranks in the hierarchy of constitutional rights higher
than property (Salonga v Pano, 134 SCRA 438), the
norms for the regulation of expression place more
stringent limits on state action. Jurisprudence has
evolved three tests: (1) the dangerous tendency
test, (2) the clear and present danger test, and (3)
the balancing of interests* test.23
* Note: For balancing of interests, see Free Speech and
Suffrage.
9. Same; same; The dangerous tendency test. In the
early stages of Philippine jurisprudence, the
accepted rule was that speech may be curtailed or
punished when it “creates a dangerous tendency
which the State has the right to prevent.” All it
requires, for speech to be punishable, is that there
21
Commentary, supra at 225.
22
Reviewer, supra at 64.
23
Suipra at 64-5.
2
be a rational connection between the speech and
the evil apprehended.
10. Same; same; same; Sample case. In People v
Perez, the Court affirmed the conviction of Perez
for seditious speech, finding that his remark—“And
the Filipinos like myself, must use bolos for cutting
off Wood’s head for having recommended a bad
thing for the Philippines.”—had a “seditious
tendency” which could easily produce disaffection
among the people and a state of feeling
incompatible with a disposition to remain loyal to
the Government and obedient to the laws.24
11. Same; same; The clear and present danger rule.
As formulated by Justice Holmes, “The question in
every case whether the words are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent.”25
The test is a question of proximity and degree.
12. Same; same; same; A question of proximity and
degree. In Dennis v United States, the Court
affirmed the convictions of Dennis et al. for
violating the Smith Act, which made it a crime for
any person knowingly and willfully to advocate,
organize or help to organize efforts aimed at, or
conspire with others for the overthrow of the
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
24
45 Phil. 599 (1923).
25
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
a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a
course whereby they will strike when the leaders
feel the circumstances permit, action by the
Government is required. The argument that there
is no need for the Government to concern itself, for
Government is strong, it possesses ample powers to
put down a rebellion, it may defeat the revolution
with ease, needs no answer. For that is not the
question. Certainly an attempt to overthrow the
government by force, even though doomed from
the outset because of inadequate numbers or power
of the revolutionists, is a sufficient evil for
Congress to prevent. The damage which such
attempts create both physically and politically to a
nation makes it impossible to measure the validity
in terms of the probability of success, or the
immediacy of a successful attempt…We must
therefore reject the contention that success or
probability of success is the criterion.”
13. Same; same; same; same. In Abrams v United
States, the Court likewise affirmed the convictions
of Abrams et al. for violating the Espionage Act,
which made it unlawful for any person to utter,
print, write, and publish disloyal, scurrilous, and
abusive language about the form of Government of
the US; (language) intended to bring the form of
Government into contempt, scorn, contumely, and
disrepute; (language) intended to incite, provoke,
and encourage resistance to the US in the war
(against Germany); and (language intended) to
urge, incite, and advocate curtailment of
production of things and products…necessary and
essential to the prosecution of the war.
2
According to the Court, the contents of the pamphlets they
printed and disseminated are “not (attempts) to bring
about a change of administration by candid discussion, for
no matter what my have incited the outbreak on the part
of the defendant anarchists, the manifest purpose of such a
publication was to create an attempt to defeat the war
plans of the Government of the United States, by bringing
upon the country the paralysis of a general strike, thereby
arresting the production of all munitions and other things
essential in the conduct of war.”26
“…the plain purpose of their propaganda was to excite, at
the supreme crisis of the war, disaffection, sedition, riots,
and, as they hoped, revolution, in this country for the
purpose of embarrassing and if possible defeating the
military plans of the Government in Europe.”27
14. Same; same; Dangerous tendency test v Clear and
present danger test. According to Bernas, it is
difficult to speak of preference (which of these
tests does the Supreme Court prefer to use)
independently of the factual context. However, the
pattern of decisions seem to indicate that: (1) in
seditious speech cases, the Court appears to favor
the dangerous tendency test; (2) in contempt of
court cases, the dangerous tendency test appears
to be preferred when the court is the Supreme
Court, while the clear and present danger test
appears to be preferred when the court involved is
an inferior court. Bernas observes that, with the
restoration of democracy, the clear and present
danger test appears to be coming into favor again.28
26
250 U.S. 622.
27
Supra at 623.
28
Reviewer, supra at 68.

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
expression, the salient guidelines are the following:
xxx
“(3) All forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of speech
and expression clause. The test for limitations on freedom
of expression continues to be the clear and present danger
rule…
“(4) The clear and present danger test, however, does not
lend itself to a simplistic and all embracing interpretation
applicable to all utterances in all forums.
“…the freedom of television and radio broadcasting is
somewhat lesser in scope than the freedom accorded to
newspaper and print media.
“(5) The clear and present danger test, therefore, must
take the particular circumstances of broadcast media into
account.
“(6) The freedom to comment on public affairs is essential
to the vitality of a representative democracy.
“(6) Broadcast stations deserve the special protection given
to all forms of media by the due process and freedom of
expression clauses of the Constitution.”29
29
137 SCRA 634-7.
Protected Speech; “Speech Plus”: Symbolic
Symbolic speech is basically nonverbal form of expression.
16. Symbolic speech; “Speech” v “Non-speech”
elements.
According to U.S. v O’Brien, “when “speech” and
“non-speech” elements are combined in the same
course of conduct, a sufficiently important
governmental interest in regulating the non-speech
element can justify incidental limitations on free
speech. A governmental regulation is sufficiently
justified if:
6. it is within the constitutional power of the Government;
7. it furthers an important or substantial governmental
interest unrelated to the suppression of free expression;
and
8. the incidental restriction on alleged freedom is no greater
than is essential to that interest.”30
17. Same; Students’ wearing armbands as a sign of
protest v School’s power to issue regulations. In
Tinker v Des Moines School Dist., the Court held
that:
- In wearing the armbands, the petitioners were quiet and
passive.
They were not disruptive and did not impinge upon the
rights of others. In these circumstances, their conduct was
within the protection of the Free Speech Clause of the First
Amendment and the Due Process Clause of the Fourteenth.
30
Reviewer, supra at 69, citing U.S. v O’Brien, 391 U.S. 367.
 2

- First Amendment rights are available to teachers and
students, subject to application in light of the special
characteristics of the school environment.
- A prohibition against expression of opinion, without any
evidence that the rule is necessary to avoid substantial
interference with school discipline or the rights of others,
is not permissible under the First and Fourteenth
Amendments.31
CONSTITUTION ART. III. BILL OF RIGHTS
SECTION 4:
NO LAW SHALL BE PASSED ABRIDGING THE FREEDOM OF SPEECH,
OF EXPRESSION, OR OF THE PRESS, OR OF THE RIGHT OF THE
PEOPLE PEACEABLY TO ASSEMBLE, AND TO PETITION THE
GOVERNMENT FOR REDRESS OF GRIEVANCES.
The right to assembly and petition is another form of “speech
plus”.
Content- neutral, has to do with
• Time – whether or not it was done or working or non-
working days
• Manner- conduct of expression
• Place – permit from Mayors for public places, unless it be
freedom parks; on private property- need only consent of
owner
2 Levels of Scrutiny:
a. Strict Scrutiny – when speech is given to captive audience
b. Less heightened – applied when audience is free to turn
away uses “CLEAR AND PRESENT DANGER” standard
Case 1: PRIMICIAS V FUGOSO

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.
31
393 U.S. 503.

2nd: The power to regulate the exercise of such and other
constitutional rights is termed the sovereign “police power” which
is the power to prescribe regulations, to promote the health,
morals, peace, education, good order or safety, and general
welfare of the people.
Case 2: NAVARRO V VILLEGAS
Tickler: Navarro applied for a permit to hold rally at Plaza Miranda
on 2/26/1970 4pm-11pm. Mayor of Manila Villegas granted permit
to hold rally at the Sunken Gardens, at earlier time. HELD: no
denial of freedom of assembly, Mayor can regulate Time Place
Manner.
J. Villamor Concurring– right is neither unlimited nor absolute.
J. Casto & J. Fernando Dissent – entitled to be accorded the utmost
deference and respect. +the permit is parang prior restraint;
walang standards to guide the licensing authority.
NOTES:
The Right of Assembly and Petition for Redress of Grievances
- Complement of the right to free speech
- Inseparable with rights to freedom of speech and of the
press
- Cognate rights
- An attribute of citizenship, right existed before the
adoption of the Constitution, derived from laws whose
authority is acknowledged by civilized men throughout the
world. It is found where civilizations exist.
Guide to Interpretation – we use the “broadest scope and widest
latitude” cuz it is to be expected that more or less disorder will
mark the public assembly of the people to protest against
grievances – because feeling is always wrought to a high pitch. It
shouldn’t be an excuse for the prosecution to seize upon every
2
instance of disorderly conduct kasi magiging “delusion” na lang
yung right to assemble & petition.
Limitations –
Criticism should be 1. Specific and therefore 2. Constructive,
specifying particular objectionable actuations of the government; it
must be reasoned or tempered, and not of contemptuous
condemnation of the entire government set up.
Criticism is within the range of liberty of speech unless the
intention and effect be seditious.
May be regulated (reiterated primicias)
The activity should not impair the rights of others whose roots are
as deep and as equally protected by iron-clad guarantees.
Case 3: PBM EMPLOYEES V PBM
Tickler: PBM employees despite not being allowed by PBM
proceeded to join a mass demonstration against Pasig Police abuses
and were dismissed from work HELD: should be reinstated, ratio:
primacy of human rights over property rights is recognized.
Notes:
The freedoms of expression and of assembly as well as the right to
petition are included among the immunities reserved by the
sovereign people, in the rhetorical aphorism of J. Holmes, to
protect the ideas that we abhor or hate more than the ideas we
cherish; or as Socrates insinuated, not only to protect the minority
who want to talk, but also to benefit the majority who refuse to
listen.
The rights of free expression, free assembly and petition, are not
only civil rights, but also political rights, essential to man’s
enjoyment of his life, to his happiness and to his full and
complete fulfillment.
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
discipline of abusive public officers. The citizen is accorded these
rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and
employees.
Freedom of assembly and expression occupy a preferred position
as they are essential to the preservation and vitality of our civil
and political institutions; and such “priority gives these liberties
the sanctity and the sanction not permitting dubious intrusions.”
J. Fernando and Barredo in Gonzales V Comelec;
J. Douglas, Black and Goldberg in NY Times V Sullivan:
Believes that the freedoms of speech and of the press as well as of
peaceful assembly and of petition for redress of grievances are
absolute when directed against public officials or “when
exercised in relation to our right to choose the men and women
by whom we shall be governed.”
C.J. Vinzon is partial to the IMPROBABLE DANGER rule formulated
by Chief Judge Learned Hand: “Whether the gravity of the evil,
discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger.”
PBM employees were fighting for their very survival utilizing the
only weapons afforded them by the Constitution – the untrammeled
enjoyment of their basic human rights.
To hold them in bad faith of the collective bargaining agreement
(c.b.a.) would stretch the compass of the cba to be a potent means
of inhibiting speech, inflicting a moral as well as mortal wound on
the constitutional guarantees of free expression, of peaceful
assembly and petition.
Case 4: JBL REYES V BAGATSING
3
Tickler: retired J. JBL Reyes sought a permit from the City of
Manila to hold a march and rally on Oct 26, 1983 2-5pm from
Luneta to gates of US Embassy, and was denied by the Mayor due to
Vienna Convention Ordinance and fear of subversives may infiltrate
the ranks of the demonstrators.
Held: no justifiable ground to deny permit because Bill of Rights
will prevail over Vienna Ordinance should conflict exist (none
proven because 500m not measured from gate to US Embassy
proper) and fear of serious injury cannot alone justify suppression
of free speech and assembly- only clear and present danger of
substantive evil.
NOTES:
The Court is called upon to protect the exercise of the cognate
rights to free speech and peaceful assembly…
Free speech, like free press, may be identified with the liberty
to discuss publicly and truthfully any matter of public concern
without censorship or punishment.
There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings, unless
there be a “clear and present danger of a substantive evil that the
State has a right to prevent.”
The sole justification for a limitation of the exercise of this right,
so fundamental to the maintenance of democratic institutions, is
the danger, of a character both GRAVE and IMMINENT, of a
serious evil to public safety, public morals, public health, or any
other legitimate public interest.
J. Frankfurter: Bill of Rights was the child of the enlightenment.
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,
communicating thoughts between citizens, and discussing public
questions. Such use of the streets and public places has from
ancient times, been a part of the privileges, immunities, rights,
and liberties of citizens.”
J. Teehankee Concurring
Burden of “objective and convincing, not subjective or
conjectural” proof of grave and imminent danger lies on the mayor.
Case 5: MALABANAN V RAMENTO
Tickler: Araneta University student council members w/ permit to
hold meeting – held mtg longer than permit granted, in areas not
covered by said permit; and were suspended for 1 year. HELD: dahil
sa freedom of assembly na guaranteed ang students, the
punishment should only be proportionate to the transgression, kaya
Restraining Order (nakapagenroll at nakagraduate na sila), enough
na yung 1 week suspension.
NOTES:
Court laid down the principles for the guidance of school
authorities and students alike.
The rights to peaceable assembly and free speech are guaranteed
students of educational institutions.
Necessarily, their exercise to discuss matters affecting their
welfare or involving public interest is not to be subjected to
previous restraint or subsequent punishment unless there be a
showing of a CLEAR AND PRESENT danger to a SUBSTANTIVE EVIL
that the state has a right to prevent.
Additional Case 6: PEOPLE V BUSTOS
Tickler: Bustos and several people sent complaint letters via
counsel against Justice of Peace ROMAN PUNSALAN, who charged
them with LIBEL.
3
Held: Bustos and the others were ACQUITTED,
Ratio: the guarantees of free speech and a free press include the
right to criticize judicial conduct. And these people did so in proper
channels without undue publicity, believing they were right.
NOTES:
Right of Assembly – means a right on the part of the citizens to
meet peaceably for consultation in respect to public affairs
Right to Petition- means that any person or group of persons can
apply, without fear of penalty, to the appropriate branch or office
of the government for a redress of grievances.
Criticism does not authorize defamation.
QUALIFIED PRIVILEGE (qualified protected speech) – bona fide upon
any subject matter in which a party communicating has an interest
or in reference to which he has a duty, is privileged, if made to a
person having a corresponding interest or duty, although it
contained criminatory matter which without this privilege would be
slanderous and actionable.
Privilege destroys the presumption of malice, the onus of proving
malice then lies on the plaintiff.
Brief Philippine History:
Freedom of speech as cherished in democratic countries was
unknown in the Philippine Islands before 1900.
Jose Rizal in “Filipinas Despues de Cien Años” described “the
reforms sine quibus non,” which the Filipinos insist upon, said:
“The minister… must begin by declaring the press in the Philippines
free…”
The Filipino patriots in Spain, through “La Solidaridad” exposing
the wants of the Filipino people demanded “liberty of the press, of
cults, and of associations.”

The Malolos Constitution, in its Bill of Rights, zealously guarded
freedom of speech, and press and assembly and petition..
The right is a necessary consequence of our republican institution
and complements the right of free speech.
Quotable Quote:
Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged
with the balm of a clear conscience. A public officer must not be
too thin- skinned with reference to comment upon his official acts.
Subtopic 5: FREE SPEECH AND SUFFRAGE
Case 1: GONZALES V COMELEC
Tickler: Revised Election Code RA 4880 prohibits early nomination
of candidates in political groups and limits the period of election
campaigns or partisan activities.
Held: lacked 1 vote to be declared unconstitutional, so the Court
instead just rationalized that Congress was using police power to
insure a free, orderly and honest election (Right of Suffrage) as
they believe that the longer the time ng elections= more costs &
more violence.
NOTES:
Reiterated in this case yung sa JBL Reyes V Bagatsing:
Free speech, like free press, may be identified with the liberty to
discuss publicly and truthfully any matter of public concern without
censorship or punishment.
There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, prosecution for
sedition, or action for damages, or contempt proceedings, unless
there be a “clear and present danger of a substantive evil that the
State has a right to prevent.”
3
The stress on freedom of association should be on its political
significance. If such a right were non-existent, the likelihood of a
one party government is more than a possibility. Authoritarianism
may become unavoidable.
The utmost scope should be afforded this freedom of association.
Douglas: “… associational rights protected by the 1st amendment
are much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in
religion.”
LIMITS: when “contrary to law”
Which is defined still with clear & present danger rule.
Criterion for permissible restriction:
DANGEROUS TENDENCY test- if the words uttered create a
dangerous tendency which the state has a right to prevent, then
such words are punishable. It is sufficient if the natural tendency
and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent.
Latter rule:
CLEAR AND PRESENT DANGER rule- J. Holmes: whether the words
are used in such circumstances and are of such nature as to create
a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a
question of PROXIMITY and DEGREE.
• means that the EVIL CONSEQUENCE must be extremely
serious
• the degree of IMMINENCE extremely high
CLEAR- causal connection with the danger of substantive evil and
the utterance questioned
PRESENT – imminent, urgent, impending, requires an unusual
quantum of proof.
• As applied in the case, requirements:

5. Not only the occasion for imposition but also
6. Limited in scope
J. Castro sep. opinion
BALANCING OF INTEREST test:
It is ultimately the high function and duty of the SC to locate the
point of accommodation and equilibrium and draw the line
between permissible regulation and forbidden restraint.
• Factors:
a. value and importance of the freedom restricted
b. Specific thrust of the restriction
c. Value and importance of the public interest sought to be
secured by legislation – nature and gravity of evil Congress
seeks to prevent
d. Whether restriction is reasonable and necessary
e. Whether there is some other measure less restrictive of the
protected freedom
J. Barredo (concurring & dissenting) I think I’m citing dissent nya:
• When the freedoms of speech, press and peaceful assembly and
redress of grievances are being exercised in relation to suffrage
or as a means to enjoy the inalienable right of the qualified
citizen to vote, they are absolute and timeless.
• The 4 month period restriction is too short, and has proven to
cause candidates to spend more; and effectively reduced the
chances and practically killed the hopes of poor candidates.
(how can a poor candidate cover more than 7,000 islands of our
archipelago in 4 months?)
Case 2: SANIDAD V COMELEC
Tickler: Sec 19 of Comelec Resolution 2167 prohibits media men
from using their media to campaign for or against the plebiscite
in the Cordillera region
3
Held: UNCONSTITUTIONAL because 1. Comelec can only regulate
franchises to candidates NOT media practitioners themselves 2. In a
plebiscite there are NO candidates.
NOTES:
The people’s right to be informed would best be served by access
to an unabridged discussion of the issues involved.
The limitation is still a RESTRICTION OF HIS CHOICE OF FORUM
where he may express his view, this form of regulation is
tantamount to a restriction of petitioner’s freedom of expression
for no justifiable reason.
Case 3: NPC V COMELEC
Tickler: Sec 11 o f RA 6466 prohibits the mass media owners from
selling or giving free space or air time for campaign or other
political purposes. Comelec will give equal space and air time to all
candidates. HELD: valid because 1. Limited duration 2. Limited
scope – do not limit commentaries, etc. 3. Reasonable and Valid
Objective – equalize rich and poor candidates and 4. Pervasiveness
of Radio and TV (pano print?)
NOTES:
The rights of free speech and free press are not the only important
and relevant values even in the most democratic of polities,
equality of opportunity to propel oneself into public office, without
regard to the level of financial resources that one may have at
one’s disposal is also an important value.
Consti Art. IX.
Section 4: The Commission (on elections) may, during the election
period supervise or regulate the enjoyment or utilization of all
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
government owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure EQUAL
OPPORTUNITY, TIME, AND SPACE, and the RIGHT TO REPLY,
INCLUDING REASONABLE, EQUAL RATES THEREFOR, for public
information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful and
credible elections.
Consti ART. II
Section 26: The egalitarian demand that “the State shall guarantee
equal access to opportunities for public service and prohibit
political dynasties as may be defined by law.
J. Davide, Jr. concurring
The regulation was only in manner, time and place.
J. Padilla concurring
Valid exercise daw of police power
J. Gutierrez dissent
It keeps voters ignorant
J. Cruz dissent
Due to it amounts to prior restriction and censorship
J. Paras dissent
For him the restrictions have no valid reason
Case 4: ADIONG V COMELEC
Since walang digest sa Deep and Profound Consti II Reviewer…
3
Digest: Senatorial Candidate Blo Umpar Adiong questions Comelec
resolution
Issue: WON Comelec may prohibit the posting of decals and stickers
on “mobile” places?
Held: NO.
Ratio: 1st the prohibition infringes on the citizen’s fundamental
right to free speech enshrined in the Constitution without any
public interest substantial enough to warrant it. – amounts to
censorship
2nd overbreadth; 3rd the objective: to equalize rich and poor
candidates is not impaired by posting stickers to cars- necessary
only is consent of the owner of the vehicle
NOTES:
The qualitative significance of freedom of expression arises from
the fact that it is the matrix, the indispensible condition of nearly
every other freedom.
Mutuc V COMELEC:
The preferred freedom of expression calls all the more the utmost
respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of
suffrage.
When faced with border line situations where freedom (of
expression) to speak & freedom to know (to information) are
invoked against (vs.) maintaining free and clean elections- the
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
unduly curtailed.
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
3. It if restricts one’s expression of belief in a candidate or
one’s opinion of his or her qualifications,
4. If it cuts off the flow of media reporting
5. If the regulatory measure bears no clear and reasonable
nexus with the constitutionally sanctioned objective.
The regulation strikes at the freedom of an individual to express his
preference and, by displaying it on his car, to convince others to
agree with him. A sticker may be furnished by a candidate but once
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.
Subtopic 6: USE OF PRIVATE PROPERTY AS A FORUM FOR OTHERS’
SPEECH
Case 1: PRUNEYARD SHOPPING CENTER V ROBINS
Tickler: the mall prohibits “publicly expressive activity including
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,
Manner. California SC was affirmed.
NOTES:
Private pero yung character imbued with public interest dahil:
California SC: we do not have under consideration the property or
privacy rights of an individual homeowner or the proprietor of a
modest retail establishment. As a result of advertising and the lure
of a congenial environment, 25,000 persons are induced to
congregate daily to take advantage of the numerous amenities
offered by the shopping center there.
Kasama ba sa’tin to? parang hindi naman e
Case 2: WOOLEY V MAYNARD
3
Tickler: New Hampshire requires license plates to be embossed
with state motto, which goes against principles of Maynard spouses
(Jehovah’s Witnesses) so they covered up the motto. SC held:
freedom to speak includes the right to refrain from speaking.
Notes:
The Constitutional rights of private property owners also have their
origins in the First Amendment right of the property owner not to
be forced by the state to use his property as a forum for the
speech of others.
UNPROTECTED SPEECH
There are narrowly limited classes of speech—defamatory
(e.g. libel), fighting words, and obscenity—whose prevention and
punishment seem to be constitutionally sanctioned. The thinking is
that these classes of speech are of slight social value and any
benefit that may be derived from them is easily outweighed by
social interests. (Chaplinsky vs New Hampshire)
A. DEFAMATORY SPEECH
The general rule for a speech to be considered libelous or
defamatory is:
Libel = falsity + actual malice (uttered in full
knowledge of its falsity or with reckless disregard)
Exemption: When the subject of the supposed libelous or
defamatory material is a public officer. Defamatory words may be
uttered against them and not be considered libelous. The reason is
that 1) they asked for it (“they voluntarily thrust themselves into
the public eye and therefore should not be thin-skinned”); 2) it’s a
matter of public interest; and 3) public figures have the
opportunity and resources to rebut whatever is said against them.
(Policarpio vs Manila Times, New York Times vs Sullivan)

Policarpio vs Manila Times
Newspapers must enjoy a certain degree of discretion in
determining the manner in which an event should be presented to
the public, and the importance to be attached thereto as a news
item, and that its presentation in a sensational manner is not per
se illegal.
But, to enjoy immunity, a publication containing derogatory
information must not only be true but also fair, and it must be
made in good faith and without any comments or remarks.
In the case at bar, the articles contained information
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.
Ruling: Not protected.
Lopez vs CA
According to Justice Learned Hand, an action for libel
would lie arising from a publication of photograph if it yields a
“grotesque, monstrous, and obscene impression” and that the
person was “substantially enough ridiculed.”
To defeat the actionability of libel, the publication must
have been done in good faith and with reasonable care [and
diligence to ascertain the truth]. Said the Court: “Newspapers
should be given leeway and tolerance as to enable them to
courageously and effectively perform their important role in our
democracy. In the preparation of stories, press reporters and
editors usually have to race with their deadlines, thus they should
not be held to account—to a point of suppression—for honest
mistakes or imperfection in the choice of words.”
3
For liability in libel to arise then without offending press
freedom, there is this test to meet: Whether the defamatory
falsehood was made with actual malice—that is, with knowledge
that it was false or with reckless disregard of whether it was false
or not.
In the case at bar, the magazine—being weekly—was under
no pressure of a daily deadline and therefore was not in haste to
publish the picture of Fidel Cruz. It should have exercised
reasonable care by cross-checking its facts. It failed to do so.
Ruling: The magazine may have issued an erratum to
acknowledge and correct its error but, libel is libel, thus it was still
made to pay Cruz.
New York Times vs Sullivan
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”
in the sense that it communicated information, expressed opinion,
recited grievances, protested claimed abuses, and sought a
financial support on behalf of a movement. That the Times was
paid for publishing the advertisement is as immaterial as the fact
that newspapers and books are sold.
Newspapers do not forfeit the protection they enjoy under
speech freedom just because they publish paid advertisements.
Otherwise, newspapers will be discouraged from carrying “editorial
advertisements” and so might shut off an important outlet for the
promulgation of information and ideas by persons who do not
themselves have access to publishing facilities.
On errors: “Some degree of abuse is inseparable from the
proper use of every thing; and in no instance is this truer than that
of the press.” Erroneous statement is inevitable in free debate.

Moreover, criticism of official conduct does not lose its
constitutional protection merely because it is effective criticism
and hence diminishes their official reputations. Presence of clear
and present danger of substantive evil must be proved. Actual
Malice needs to be proved if a public official wants to recover
damages for a defamatory falsehood relating to his official
conduct. “Even a false statement may be deemed to make a
valuable contribution to public debate since it brings about the
clearer perception and livelier impression of truth, produced by its
collision with error.”
Rosenbloom vs Metromedia
When the offended party is a private individual, must he be
required to prove only the fact that the publisher failed to exercise
“reasonable care” in publishing defamatory falsehoods? The
thinking is that, unlike a public figure, the private individual does
not have access to media to counter the defamatory material. Also,
the private individual has not assumed the risk of defamation by
thrusting himself into the public arena.
Modifying its ruling in New York Times vs Sullivan, the Court
said: Voluntarily or not, we are all “public” men to some degree.
The idea that certain “public figures” have voluntarily exposed
their entire lives to public inspection, while private individuals
have kept theirs carefully shrouded from public view is, at best, a
legal fiction.
Accordingly, individual reputation yields to other important
social goals, such as freedom of the press and freedom of speech.
Having said this, the Court held that “reasonable care” is an elusive
standard that would place on the press or media the intolerable
burden of guessing how a jury might assess the reasonableness of
steps taken by it to verify the accuracy of every reference to a
name or picture.
3
Instead of reasonable care, the offended private individual
must present a clear and convincing proof that the defamatory
falsehood was published with knowledge that it was false or with
reckless disregard of whether it was false or not.
Ruling: Calculated falsehood falls outside the ambit of
protected speech.
DISSENTING: In order for particular defamation to come within the
privilege [of protected speech], there must be a determination that
the event was of legitimate public interest.
Ayer Productions vs Capulong
This is a case that calls for balancing of interests between
freedom of expression and right of privacy—to film or not to film a
documentary on EDSA I with Enrile’s participation.
Freedom of speech and of expression includes the freedom
to film and produce motion pictures and to exhibit such motion
pictures in theaters or to diffuse them through television. That the
film is a commercial activity is of no issue.
The right of privacy, meanwhile, is not absolute and cannot
be invoked to resist publication and dissemination of matters of
public interest. Privacy is protected only from unwarranted
publicity, wrongful publicizing of the private affairs and activities
of an individual which are outside the realm of public concern.
Applying the “balancing of interests test” and “clear and
present danger test” to the case at bar, the Court held that the
subject matter of the documentary is the EDSA Revolution not
Enrile’s life. The Revolution is without question a matter of public
interest and Enrile’s participation must be included in it for it to be
historically accurate.
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
events. There must be no knowing or reckless disregard of truth in
depicting the participation of Enrile.
Ruling: Protected speech.
Soliven vs Makasiar
Based on Sir Roque’s discussion: Beltran argued that what
he wrote about Cory was a privileged communication and,
therefore, should not be subject of litigation. For one, the subject
is the President—the most powerful individual in the country. What
are the odds the case will be decided based on its merits?
For another, to allow a libel case would produce a “chilling
effect” on press freedom.
The Court did not rule on libel saying it’s not a trier of
facts. Or that it has no basis to rule on the point of the supposed
“chilling effect” of the libel case.
MVRS Publications vs Islamic Da’wah Council
The alleged defamatory statement here is directed at all
Muslims. Which gives rise to the question: May an individual Muslim
or a group of Muslims file a case on behalf of all Muslims in the
world?
Said the Court: Declarations made about a large class of
people cannot be interpreted to advert to an identified or
identifiable individual. If the group is a very large one, then the
alleged libelous statement is considered to have no application to
anyone in particular, since one might as well defame all mankind.
In the case at bar, for example, an individual Muslim has a
reputation that is personal, separate and distinct from the
community.
3
The Court applied the following doctrine: Defamation is an
invasion of a relational interest since it involves the opinion which
others in the community may have, or tend to have, of the
offended party. The law of defamation protects the interest in
reputation—the interest in acquiring, retaining, and enjoying one’s
reputation as good as one’s character and conduct warrant. The
mere fact that the plaintiff’s feelings and sensibilities have been
offended is not enough to create a cause of action for defamation.
Thus, words which are merely insulting are not actionable as libel
or slander per se.
Standard: Defamation requires that something be
communicated to a third person that may affect the opinion others
may have of the offended party. For an action on libel to prosper,
therefore, the following should be present—1) injury to reputation,
2) published statement, and 3) statement defamatory to the
complainant. In short, if no one is identified in a statement, there
can be no libel because no one’s reputation has been injured.
Ruling: Protected speech.
Vitug vs Court of Appeals
Vitug argued that her article was a non-defamatory
expression of opinion. And that the privileged nature of said
communication should be a ground for quashing the libel suit
against her.
The Court answered in the negative, saying that Vitug’s
claims about her article—whether it is defamatory or non-
defamatory, based on true facts or not, written with or without
malice—need adequate proof and proper appreciation by the trial
court and are issues that cannot be passed upon through mere
arguments.
Vitug’s article is “not absolute but merely qualifiedly
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
merits.
DISSENT: “Any other rule on defamation, in a national community
like ours with many, diverse cultural, social, religious, and other
groupings, is likely to produce an unwholesome chilling effect
upon the constitutionally protected operations of the press and
other instruments of information and education.”
B. “FIGHTING WORDS,” OFFENSIVE WORDS
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.
(Chaplinsky vs New Hampshire)
Fighting words are not protected because they are not an
essential part of the exposition of ideas and they have negligible (if
at all) social value.
Chaplinsky vs New Hampshire
For denouncing other religions as a racket, Chaplinsky—a
Jehovah’s Witness—caused a public disturbance. When arrested, he
called Marshal Bowering a “God-damned racketeer” and a “damned
fascist.” He was charged with violating Chapter 378, Sec 2 of the
Public Laws of New Hampshire—which prohibits use of offensive,
derisive, or annoying words to any other person in public.
The Court pointed out that there are certain well-defined
and narrowly limited classes of speech which are not
constitutionally protected. These include the lewd and obscene,
the profane, the libelous, and the insulting or “fighting words.”
Reason: Their very utterance inflicts injury or tends to incite an
immediate breach of the peace.
The word “offensive” is not to be defined in terms of what
a particular addressee thinks. The TEST is what men of common
3
intelligence would understand would be words and expressions
which by general consent are “fighting words” when said without
a disarming smile. (Talagang kailangan disarming ang smile)
Applied to the New Hampshire statute: “A statute punishing
verbal acts, carefully drawn so as not unduly to impair liberty of
expression, is not too vague for a criminal law.”
Ruling: Not protected speech.
Cohen vs California
In a municipal court, Cohen wore a jacket bearing the
words “Fuck the Draft” in protest of the ongoing Vietnam War. For
which he was charged with violating the California statute
prohibiting acts disturbing the peace or quiet of any neighborhood…
by offensive conduct.
Court: “While F*CK is commonly employed in a personally
provocative fashion, in this instance it was clearly not directed to
the person of the hearer. No individual actually or likely to be
present could reasonably have regarded the words on appellant’s
jacket as a direct personal insult.” (Let's do away with the asterisk
and use the word FUCK).
The mere presumed presence of unwitting listeners or
viewers does not serve automatically to justify curtailing all speech
capable of giving offense. Outside the sanctuary of our homes, we
are often captives of and subject to objectionable speech. Besides,
those in the same room with Cohen could effectively avoid
bombardment of their sensibilities simply by averting their eyes.
Ruling: Protected speech.

B. UNPROTECTED SPEECH
Subtopic 3: OBSCENITY
According to sir, very subjective talaga, no set standard. as applied
in the Philippines, it depends on the sole determination of the
Judge. “Judges become guardians of morality.”
Ni-raise din ni Pau in class yun, na sa US kasi may Jury so
ascertainable kahit papano yung “average person, applying
contemporary community standards”
Case 1: ROTH V US
Tickler: Roth was convicted for keeping for sale obscene and
indecent books, magazines and publishing ads of them. (mail order
business) Held: Obsenity is not an utterance that is within the
definition of protected speech and press.
NOTES:
Historically- obscenity has always been unprotected.
There is a presumption that porn is utterly without redeeming
social value.
diniscuss na ang lumang test ay:
Regina V Hicklin “effect of a single excerpt of the supposedly
“obscene” material upon particularly susceptible persons
at pinalitan ng bagong standard:
Whether the AVERAGE person, applying contemporary community
standards, would find that the dominant theme of the material
TAKEN AS A WHOLE appeals to prurient interest
4
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:
Notable lang: by these standards, punishment is inflicted for
THOUGHTS PROVOKED, not for overt acts nor antisocial conduct.
Case 2: MILLER V CALIFORNIA
Tickler: Miller was convicted of mailing unsolicited sexually explicit
material. Held: conviction affirmed.
NOTES:
Diniscuss din yung mas later sa Roth na decision, yung
Memoirs V Mass na Obscenity test:
a.) Dominant theme applies to prurient interest
b.) Patently offensive because it affronts contemporary
standards relating to the description or representation of
sexual matters
c.) Utterly without redeeming social value.
And introduced a NEW OBSCENITY TEST: (eto yung inapply natin sa
Pilipinas)
pareho ng Roth, ireiterate na rin natin dito
a.) Whether the AVERAGE person, applying contemporary
community standards, would find that the dominant
theme of the material TAKEN AS A WHOLE appeals to
prurient interest
Pero dinagdagan:
b.) WON the work depicts or describes in a patently offensive
way, sexual conduct specifically defined by the applicable
state law.
c.) WON the work lacks serious LITERARY, ARTISTIC, POLITICAL,
or SCIENTIFIC value.
• Note na pinalitan yung utterly without redeeming social
value ng lacks serious…

Case 3: GONZALES V KALAW KATIGBAK
Tickler: Kapit sa Patalim was classified as “For Adults Only” by the
MTRCB and was suggested to have certain portions cut/ deleted.
HELD: MTRCB do not have the power to exercise prior restraint.
NOTES:
The power of the MTRCB is limited to the classification of films.
The TEST to determine whether a motion picture exceeds the
bounds of permissible exercise of free speech and, therefore should
be censored, is the CLEAR AND PRESENT danger test.
Pero pag TV less liberal approach kasi “pervasive”, reaches every
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
standards…
Case 4: PITA V CA
Tickler: Anti- smut campaign of Manila Mayor Bagatsing seized
without warrant publications believed to be obscene and burned
them, including Leo Pita’s Pinoy Playboy. Held: Smut is not smut
simply because one insists it is smut, it requires judicial
determination. (kahit reversed and nanalo si Pita, wala namang
affirmative action, sunog na e- moot and academic)
NOTES:
It is essential for the validity of… previous restraint or censorship
that the … authority does not rely solely on his own appraisal of
what the public welfare, peace or safety may require.
4
Applied clear and present danger test.
Reviewed People V Kottinger (yung pics of indigenous people HELD:
not obscene) test “whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or
other article charged as being obscene may fall.” And another test
“which shocks the ordinary and common sense of men as an
indecency” “whether a picture is obscene or indecent must depend
upon the circumstances of the case” and that ultimately the
question is decided by the “judgment of the aggregate sense of the
community reached by it.”
Applied MILLER V CALIFORNIA, NEW OBSCENITY TEST.
Case 5: RENO V ACLU
Tickler: Communications Decency Act seek to protect minors from
obscenity on the internet. HELD: overbroad, vague,
unconstitutional.
NOTES:
Sexual expression which is indecent but not obscene is
protected by the First Amendment.
The internet is not an “invasive” medium because it requires a
series of affirmative steps more deliberate and directed than
merely turning a dial (tv or radio).
There is no effective way to determine the identity or the age of a
user who is accessing material through email, mail exploders,
newsgroups or chat rooms.
 4

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

Case 6: ASHCROFT V ACLU

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.

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