A: Since Senator XX is a public person and the questioned imputation is directed against him in his public capacity, in this case actual malice means the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. Since there is no proof that the report was published with knowledge that it is false or with reckless disregard of whether it was false or not, the defendants are not liable for damage. (Borjal v.
CA, G.R. No. 126466, Jan. 14, 1999)
Q: Is the Borjal doctrine applicable in a case where the allegations against a public official were false and that the journalist did not exert effort to verify the information before publishing his articles?
A: No. Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of the RPC, but this expansion does not cover such a case. The expansion speaks of "fair commentaries on matters of public interest." While Borjal places fair commentaries within the scope of qualified privileged communication, the mere fact that the subject of the article is a public figure or a matter of public interest does not automatically exclude the author from liability. His articles cannot even be considered as qualified privileged communication under the second paragraph of Art. 354 of the RPC which exempts from the presumption of malice a fair and true report.
Good faith is lacking. (Tulfo vs. G.R. No. 161032, September 16, 2008)
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3. Content‐Based & Content‐Neutral Regulation
Q: Distinguish content‐neutral regulation from content‐based restraint or censorship.
A:
CONTENT‐NEUTRAL REGULATION
CONTENT‐BASED RESTRAINT Substantial governmental
interest is required for their validity, and they are not subject to the strictest form of judicial scrutiny rather only an
intermediate approach‐
somewhere between the rationality that is required of a
law and the compelling interest standard applied to
content‐based restrictions.
They are given the strictest scrutiny in light of their
inherent and invasive impact.
Note: When the prior restraint partakes of a content‐neutral regulation, it is subject to an intermediate review. A content‐based regulation or any system or prior restraint comes to the Court bearing a heavy presumption against its unconstitutionality and thus measured against the clear and present danger rule, giving the government a heavy burden to show justification for the imposition of such restraint and such is neither vague nor overbroad.
Q: The NTC issued a warning that that the continuous airing or broadcast by radio and television stations of the an alleged wiretapped conversation involving the President allegedly fixing votes in the 2004 national elections is a continuing violation of the Anti‐Wiretapping Law and shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies.
Were the rights to freedom of expression and of the press, and the right of the people to information on matters of public concern violated?
A: Yes, said rights were violated applying the clear and present danger test. The challenged acts need to be subjected to the clear and present danger rule, as they are content‐based restrictions. The acts of NTC and the DOJ Sec.
focused solely on but one object—a specific content— fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression.
A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti‐
wiretapping law.
The evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording.
Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a
“complete” version and the other, an “altered”
version. Thirdly, the evidence on the who’s and the how’s of the wiretapping act is ambivalent,
especially considering the tapes’ different versions. The identity of the wire‐tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti‐wiretapping law. There is no showing that the feared violation of the anti‐
wiretapping law clearly endangers the national security of the State. (Chavez v. Gonzales, G.R.
No. 168338, Feb. 15, 2008)
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PAHOLITICAL DVISERERAZEUS : ALCAW TTYHRISTINE .T EEAMDWIN :Y. R UEY Y;S MANDOVALEMBERS:; SLUBJECT AWRENCE HEADPAULO : RACHEL H. AQUINOMARIE , LL.EANDRO FELICESR; AODEL SST.V. SUBJECT ATIENZAHEADS, MARINETH : WIVINO EASTER E. BRACERO AN D. IIA YOS& ,CARLO R. BALA, WILFREDO T. BONILLA, JR., KEEL ACHERNAR R. DINOY, APRIL V. ENRILE, KENNETH JAMES CARLO C. HIZON, JOSE MARIA G. MENDOZA, ROGER CHRISTOPHER R. REYES, ROMILINDA C. SIBAL, JASMIN M. SISON, ZARAH PATRICIA T. SUAREZ, RALPH JULIOUS L.
4. Facial Challenges and Overbreadth Doctrine
Q: What do you mean by Facial Challenges?
A. A facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void.
Note: Facial challenge to a statute is allowed only when it operates in the area of freedom of expression.
Invalidation of the statute on its face, rather than as applied, is permitted in the interest of preventing a chilling effect on freedom of expression. ( Separate opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 2000)
Q: How is "facial" challenge different from "as‐
applied" challenge?
A: Distinguished from an as‐applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. (KMU v. Ermita, G.R. No. 17855, October 5, 2010)
Q: Are facial challenges allowed in penal statutes?
A: No. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. (KMU v.
Ermita, G.R. No. 17855, October 5, 2010)
Q: What is the Overbreadth Doctrine?
A: The overbreadth doctrine permits a party to challenge the validity of a statute even though as applied to him it is not unconstitutional but it might be if applied to others not before the Court whose activities are constitutionally protected. (Separate opinion of Justice Mendoza in Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128, 2000) It is a type of facial challenge that prohibits the government from achieving its purpose by means that “sweep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity.
5. Tests
Q: What are the tests for valid governmental interference to freedom of expression?
A:
1. Clear and Present Danger test
Question: Whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree (Schenck v. US, 249 US 47, 1919)
Emphasis: The danger created must not only be clear and present but also traceable to the ideas expressed. (Gonzales v. COMELEC, G.R.
No. L‐27833, April 18, 1969)
Note: This test has been adopted by our SC, and is most applied to cases involving freedom of expression.
2. Dangerous Tendency test
Question: Whether the speech restrained has a rational tendency to create the danger apprehended, be it far or remote, thus government restriction would then be allowed.
It is not necessary though that evil is actually created for mere tendency towards the evil is enough.
Emphasis: Nature of the circumstances under which the speech is uttered, though the speech per se may not be dangerous.
3. Grave‐but‐Improbable Danger test
Question: Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to
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avoid the danger (Dennis v. US, 341 US 494, 1951)
Note: This test was meant to supplant the clear and present danger test.
4. Balancing of interest test
Question: which of the two conflicting interests (not involving national security crimes) demands the greater protection under the particular circumstances presented:
a. When particular conduct is regulated in the interest of public order
b. And the regulation results in an indirect, conditional and partial abridgement of speech (Gonzales v. COMELEC, G.R. No. L‐
27833, Apr. 18, 1969).
5. O’Brien test
Question: in situations when “speech” and “non‐
speech” elements are combined in the same course of conduct, whether there is a sufficiently important governmental interest that warrants regulating the non‐speech element, incidentally limiting the “speech” element.
Note: A government regulation is valid if:
a. It is within the constitutional power of the government;
b. In furtherance of an important or substantial governmental interest;
c. Governmental interest is unrelated to the suppression of free expression;
and
d. The incidental restriction on the freedom is essential to the furtherance of that interest. (US v.
O’Brien, 391 US 367, 1968; SWS v.
COMELEC, G.R. 147571, May 5, 2001)
6. Direct Incitement test
Question: What words did a person utter and what is the likely result of such utterance
Emphasis: The very words uttered, and their ability to directly incite or produce imminent lawless action.
Note: It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case.
6. State Regulation of Different Types of Mass Media
Q: Can an offensive and obscene language uttered in a prime‐time television broadcast which was easily accessible to the children be reasonably curtailed and validly restrained?
A: Yes. In Soriano v. MTRCB, G.R. No. 165636, Apr.
29, 2009, the Court, applying the balancing of interest doctrine, ruled that the government’s interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the suspension period.
Soriano’s offensive and obscene language uttered on prime‐time television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the State’s mandate to protect and care for them, as parens patriae, constitute a substantial and compelling government interest in regulating Soriano’s utterances in TV broadcast.
Q: Is broadcast media entitled to the same treatment under the free speech guarantee of the Constitution as the print media?
A: No. Because of the unique and pervasive influence of the broadcast media, “Necessarily . . . the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. (Eastern Broadcasting (DYRE) Corporation v. Dans, Jr., 137 SCRA at 635)
Q: Can the trial of Estrada in the Sandiganbayan or any other court be broadcasted in TV or radio?
A: No. An accused has a right to a public trial, but it is not synonymous with a publicized trial.
Freedom of the press and the accused’s protection from a possible prejudicial publicized trial must be taken into consideration. And unless there are safety nets to prevent this event, broadcast media cannot be allowed to publicize the trial. (Re: Request for Radio‐TV Coverage of the Estrada Trial, A.M. No 01‐4‐03‐SC, June 29, 2001)
7. Commercial Speech
Q: What is the meaning of commercial speech?
A: It is communication which “no more than proposes a commercial transaction.
Advertisements of goods or of services is an example of this. (Bernas, the 1987 Constitution of the Republic of the Philippines Comprehensive Reviewer 2006)
Q: In order for government to curtail commercial speech what must be shown?
A: To enjoy protection, commercial speech:
1. Must not be false or misleading (Friedman v. Rogers, 440 US 1 (1979) and
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PAHOLITICAL DVISERERAZEUS : ALCAW TTYHRISTINE .T EEAMDWIN :Y. R UEY Y;S MANDOVALEMBERS:; SLUBJECT AWRENCE HEADPAULO : RACHEL H. AQUINOMARIE , LL.EANDRO FELICESR; AODEL SST.V. SUBJECT ATIENZAHEADS, MARINETH : WIVINO EASTER E. BRACERO AN D. IIA YOS& ,CARLO R. BALA, WILFREDO T. BONILLA, JR., KEEL ACHERNAR R. DINOY, APRIL V. ENRILE, KENNETH JAMES CARLO C. HIZON, JOSE MARIA G. MENDOZA, ROGER CHRISTOPHER R. REYES, ROMILINDA C. SIBAL, JASMIN M. SISON, ZARAH PATRICIA T. SUAREZ, RALPH JULIOUS L.
2. Should not propose an illegal transaction, Pittsburgh Press Co. v Human Relations Commissions, 413 US 376(1973).
Note: However, even truthful and lawful commercial speech maybe regulated if (1) government has a substantial interest to protect; (2) the regulation directly advances that interest; and (3) it is not more than extensive than is necessary to protect that interest. (Central Hudson Gas & Electric Corp v.
Public Service Commission of NY, 447 US 557 (1980)
8. Pivate v. Government Search
Q: Differentiate Government Speech From Private Speech.
A:
Government Speech Private Speech A speech where the
government may
advance or restrict its own speech in a manner that would clearly be forbidden were it regulating the speech of a private citizen.
(doctrine was implied in Wooley v. Maynard in 1971)
The right of a person to freely speak one’s mind is a highly valued freedom in a republican and democratic society.
(Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002))
9. Heckler’s Veto
Q: What is a Heckler’s Veto?
A: A heckler's veto occurs when an acting party's right to freedom of speech is curtailed or restricted by the government in order to prevent a reacting party's behavior. The term Heckler’s
Veto was coined by University of Chicago professor of law Harry Kalven.
It may be in the guise of a permit requirement in the holding of rallies, parades, or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views. (Gorospe, 2006, citing Forsyth County v. Nationalist Movement, 315 U.S.
568, 1942)
h. FREEDOM OF ASSEMBLY AND PETITION
Q: Is the right to assembly subject to prior restraint?
A: No. It may not be conditioned upon the prior issuance of a permit or authorization from government authorities. However, the right must be exercised in such a way as will not prejudice the public welfare.
Q: What is the so‐called permit system?
A: Under the permit system, before one can use a public place, one must first obtain prior permit from the proper authorities. Such is valid if:
1. It is concerned only with the time, place, and manner of assembly; and 2. It does not vest on the licensing
authority unfettered discretion in choosing the groups which could use the public place and discriminate others.
Note: Permits are not required for designated freedom parks.
Q: What is the rule on assembly in private properties?
A: Only the consent of the owner of the property or person entitled to possession thereof is required.
Q: What are the two tests applicable to the exercise of the right to assembly?
A:
1. Purpose Test – looks into the purpose of the assembly regardless of its backers.
(De Jonge v. Oregon, 299 US 353, 365, 1937)
2. Auspices Test – looks into the backers/supporters.
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Note: The ruling in Evangelista v. Earnshaw (G.R. No.
36453, Sept. 28, 1932) is not yet abrogated‐‐Mayor revoked permits he already granted because the group, the Communist Party of the Philippines, was found by the fiscal to be an illegal association. When the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the Constitution and the laws, and the existence of the State.
Q: Is the concept of people power recognized in the Constitution? Discuss briefly.
A: Yes. The Constitution:
1. Guarantees the right of the people to peaceably assemble and petition the government for redress of grievances (Sec. 4, Article III,).
2. Requires Congress to pass a law allowing the people to directly propose and enact laws through initiative and to approve or reject any act or law or part of it passed by Congress or a local legislative body (Sec. 32, Article VI).
3. Provides that the right of the people and their organizations to participate at all levels of social, political, and economic decision‐making shall not be abridged and that the State shall, by law, facilitate the establishment of adequate consultation mechanisms (Sec. 16, Article XIII).
4. Provides that subject to the enactment of an implementing law, the people may directly propose amendments to the Constitution through initiative (Sec.
2, Article XVII).
i. FREEDOM OF RELIGION
Q: What are the two guarantees contained in Sec. 5 Article III of the 1987 Constitution?
A:
1. Non‐establishment clause;
2. Free exercise clause, or the freedom of religious profession and worship
1. Non‐establishment Clause
Q: What is the non‐establishment clause?
A: The non‐establishment clause states that the State cannot:
1. Set up a church
2. Pass laws which aid one or all religions or prefer one over another
3. Influence a person to go to or stay away from church against his will 4. Force him to profess a belief or
disbelief in any religion
2. Free‐Exercise Clause
Q: What are the aspects of freedom of religious profession and worship?
A: These are the right to believe, which is absolute, and the right to act on one’s belief, which is subject to regulation.
Q: Give some exceptions to the non‐
establishment clause as held by jurisprudence.
A:
1. Tax exemption on property actually, directly and exclusively used for religious purposes;
2. Religious instruction in public schools:
a. At the option of parents/guardians expressed in writing;
b. Within the regular class hours by instructors designated or approved by religious authorities of the religion to which the children belong;
c. Without additional costs to the government;
3. Financial support for priest, preacher, minister, or dignitary assigned to the armed forces, penal institution or government orphanage or leprosarium;
4. Government sponsorship of town fiestas, some purely religious traditions have now been considered as having acquired secular character; and
5. Postage stamps depicting Philippines as the venue of a significant religious event – benefit to the religious sect involved was merely incidental as the
promotion of Philippines as a tourist destination was the primary objective.
Q: What is the Lemon test?
A: It is a test to determine whether an act of the government violates the non‐establishment clause. To pass the Lemon test, a government act or policy must:
1. Have a secular purpose;
2. Not promote or favor any set of religious beliefs or religion generally; and 3. Not get the government too closely
involved (“entangled”) with religion.
Q: What is the Compelling State Interest test?
A: It is the test used to determine if the interests of the State are compelling enough to justify infringement of religious freedom. It involves a three‐step process:
1. Has the statute or government action created a burden on the free exercise of religion? – Courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief since the free exercise clause
1. Has the statute or government action created a burden on the free exercise of religion? – Courts often look into the sincerity of the religious belief, but without inquiring into the truth of the belief since the free exercise clause