CONSTITUTIONAL

LAW 2

FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

Art. III, Sec. 4: It includes the right to be silent:

No law shall be passed abridging the o Barnette Case: The Bill of Rights
freedom of speech, of expression, or of which guarantees to the
the press, or the right of the people individual the liberty to utter
peaceably to assemble and petition the what is in his mind also
government for redress of grievances. guarantees to him the liberty not
to utter what is not in his mind.
To further bolster this section:
The right to an audience: the State
Art. III, Sec. 18(1): cannot prohibit the people from hearing
No person shall be detained solely by what a person has to say.
reason of his political beliefs and The right to listen also includes the right
aspirations. not to listen.

This article ensures the free & effective MODES OF EXPRESSION (SLOWM):
communication of ideas from mind to 1. Symbolisms
mind. 2. Literary Works
3. Oral
This article is limited to the discussion of 4. Written
matters of public interest and does not 5. Media
cover private interest.
ELEMENTS OF FREE EXPRESSION (CS):
IMPORTANCE: 1. Freedom from Previous Restraint or
Every individual has a right to offer his Censorship.
views and suggestions in the discussion 2. Freedom from Subsequent
of the common problems of the Punishment.
community of the nation.
Philosophical basis may be found in the FREEDOM FROM CENSORSHIP
case of Abrams v. US: The ultimate Censorship:
good desired is better reached by a free The unlawful curtailment of free flow of
trade in ideas. ideas.
Operates on prior approval of the
SCOPE: government.
Not confined only to those sympathetic It need not partake of total suppression;
or acceptable to the majority mere restriction of circulation is
It should allow the articulation of even unconstitutional.
the unorthodox ideas. Examples:
To invite dispute according to the U.S. o Previous approval of the
Supreme Court. government to allow the
Justice Holmes: This right exists not so publishing of a book
much for the thought that agrees with
us as for the thought that we detest.
Ivan Chris T. Luzuriaga, 1-O
 CONSTITUTIONAL LAW 2

FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

o Obtention from authorities of a the invasion of the privacy due to these

speaking permit before advertisements by candidates for public
delivering speeches. office.

Grosjean v. American Press Co.: Tax on
periodicals that published more than
20,000 copies per issue was invalid FREEDOM FROM PUNISHMENT
because its a tax on knowledge and it Freedom of speech includes freedom
was an indirect attempt to restrict the after the speech.
wide dissemination of ideas. A free Rights are still subject to police power
press stands as one of the greatest and may be properly regulated in the
interpreters between the government interest of public.
and the people. Freedom of expression does not cover
New York Times v. United States: Only a ideas offensive to public order or
free and unrestrained press can decency or the reputation of persons
effectively expose deception in which are all entitled to protection by
government Duty to prevent any part the State.
of the government from deceiving the
people and sending them off to distant MAJOR CRITERIAS TO DETERMINE THE
lands to die of foreign fevers and LIABILITY OF THE INDIVIDUAL FOR
foreign shot and shell. IDEAS EXPRESSED BY HIM:
Iglesia ni Cristo v. Court of Appeals: The
MTRCB has a right to review and clear A. CLEAR AND PRESENT DANGER RULE
the show by the petitioner but should Most libertarian of the tests
not have barred from public viewing Schenk v. United States (Violation of
their show because the show criticized Espionage Act of 1917): Whether the
other religious practices; it was not an words used are used in such
attack on other religions. There was no circumstances and are of such a nature
clear and present danger. as to create a clear and present danger
Primicias v. Fugoso: The Mayor may that they will bring about the
only reasonably regulate, not absolutely substantive evils that the State has a
prohibit, the use of public places to hold right to prevent.
a public meeting (by the Nacionalista It is a question of proximity and degree.
Party in Plaza Miranda). The character of every act depends
National Press Club v. COMELEC: Even upon the circumstances in which it is
though there is a limitation on the right done.
of free speech and of access to mass The danger created must be clear,
media of the candidates, it gives an present and traceable to the ideas
equal opportunity to candidates who do expressed.
not have deep pockets to spend for o CLEAR: Casual connection with
advertising with all forms of media. It the danger of the substantive
also respects the rights of citizens from
Ivan Chris T. Luzuriaga, 1-O
 CONSTITUTIONAL LAW 2

FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

evil arising from the utterance expression was to insure a true

questioned. ferment of ideas and that the right was
o PRESENT: Time element. entitled to the utmost deference and
Identifies what is imminent and respect, subject only to well-defined
immediate danger. The danger limits. Authorities, therefor, can only
must be probably and very likely regulate their proper use of free speech.
inevitable. Ruiz v. Gordon laid down the guidelines
In the Terminiello v. City of Chicago for the application of permit to hold an
case, a person was convicted for the assembly:
noise given by the people, of about o PUBLIC PLACE: Applicants should
1,000, who protested his speech as he inform the licensing authority of
was giving it inside an auditorium the date, public place and time.
before an audience of about 800 o PRIVATE PLACE: Only the
(Conviction: Reversed) while in Feiner v. consent of the owner OR the one
New York, the conviction was because entitled to its legal possession is
of the person himself that spoke with required.
intent to provoke a breach of the The licensing authority should be
peace. informed at the earlier time for
Picketing may be validly prohibited and appraisal purposes (based on clear and
penalized when set in a background of present danger) and that his decision
violence. must be transmitted to the applicants at
Justice Brandeis in Whitney v. California the earlier opportunity.
stated that fear of serious injury or even
imminent danger cannot justify to resort B. DANGEROUS TENDENCY DOCTRINE
to prohibition of free speech and Applied prior to the Clear and Present
assembly. The evil apprehended must Danger Rule.
be relatively serious and there must be Highly unacceptable criterion to
probability of serious injury to the state. discourage attacks against the American
Navarro v. Villegas: Unlike in Primicias administration.
case in 1947, the permit was not issued Cabansag v. Fernandez:
because in the 1970s, at the height of o Words uttered create a
student unrest and activism, speeches dangerous tendency and the
planned to be delivered could ignite the State has the right to prevent
turbulence the mayor wanted to the same. Such are punishable.
prevent. (Circumstances were different) o Sufficient that acts are in general
Reyes v. Bagatsing: The burden of terms and that there is a natural
proving the danger by the rally (in tendency and probable effect of
Luneta) was on the mayor. The denial of the utterance to bring about
the permit was invalid because of the substantive evil which the
lack of probability of a clear and present legislative body seeks to
danger. Chief Justice Fernando stated prevent.
that the function of freedom of
Ivan Chris T. Luzuriaga, 1-O
 CONSTITUTIONAL LAW 2

FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

o It is not necessary that the If no special justification exists, the right

language is calculated to incite must prevail.
persons to acts of force, violence Authority is preferred here; liberty in
or unlawfulness. clear and present danger rule.
A person could be punished for his ideas According to Justice Black, this allows
that only have a tendency to create the the courts to decide that freedom of
evil sought to be prevented. To create speech may not be enforced unless they
the actual evil is not necessary. believe it is reasonable to do so.
People v. Perez: The municipal secretary
was sentenced to jail for the tendencies CRITICISM OF OFFICIAL CONDUCT
to instigate others to cabal, rebellious U.S. v. Bustos: Complete liberty to
conspiracies and tended to stir up comment on the conduct of public men
people against the lawful authorities. is a scalpel in the case of free speech A
Gitlow v. New York: Accused was public official must not be too think-
convicted of inciting to overthrow the skinned with reference to comment
U.S. Government. This case was a upon his official acts.
criticism of the dangerous tendency This is a liberal rule stating that the
doctrine by Justice Holmes. official acts and even the private life, of
o Every idea is an incitement but a public servant are legitimate subjects
there is a difference between of public comment.
mere expression and incitement The comments must be made in good
the difference thereby being the faith and with justifiable ends in order
speakers enthusiasm for the to be protected from prosecution.
result. A public figure (i.e. a candidate for
public office) may be subject of
C. BALANCE-OF-INTEREST TEST criticism.
American Communications Association Rosenbloom v. Metromedia: A private
v. Douds: When the particular conduct individual may be the subject of public
is regulated in the interest of public comment as long as it is a matter of
order, and the regulation results in an general or public interest.
indirect, conditional, partial o Publics primary interest: Event;
abridgement of speech, the duty of the conduct of participant and the
courts is to determine which of the two content, effect and significance
conflicting interests demands the of the conduct.
greater protection under the particular Lagunzad v. Sotto Vda. De Gonzales:
circumstances presented. Private respondent, mother of
In a given situation, if it should appear deceased, Moises Padilla who is a public
that there is urgent necessity for officer, wanted to restrain the
protecting the national security against exhibition of petitioners movie for
improvident exercise of freedom of being a public figure does not
expression, the right must yield. automatically destroy in toto a persons
right to privacy; it does not extend to
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 CONSTITUTIONAL LAW 2

FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

fictional or novelized representation of prompt determination within a specific

a person, no matter how public a figure time period.
he or she may be. Miller v. California: TEST OF OBSCENITY
Ayer Productions Pty. Ltd. v. Judge o Whether the average person,
Capulong: Enriles averments were applying contemporary
rejected because his life, depicted in the community standards, would
move Four Days of Revolution, find that the work taken as a
showed his participation in the EDSA whole, appeals to the prurient
Revolution and the film remained interest.
truthful to the event aforementioned o Whether the work depicts or
though showing his private life as a describes, in a patently offensive
consequence. way, sexual conduct specifically
People v. Alarcon: Publications tending defined by the applicable law.
to impede, obstruct, embarrass or o Whether the work, taken as a
influence the courts in administration of whole, lacks serious literary,
justice in a pending suit constituted artistic, political or scientific
criminal contempt. value.
Zaldevar v. Sandiganbayan: Special Courts must apply a community, not a
inhibitions imposed on lawyers in the national, standard.
exercise of their freedom of expression; Pita v. Court of Appeals: Determination
A member of the bar can, and will, be of the word obscenity should be on a
stopped at the point and where he case-to-case basis.
infringer the Canon of Ethics.
ASSEMBLY AND PETITION
ART AND OBSCENITY Public issues are better resolved after
Our jurisprudence on the regulation of an exchange of views among citizens
public decency adheres to the meeting with each other for the
traditional rules, without the adventure, purpose. It is an effective forum for the
good or bad, of innovation. ventilation of ideas.
People v. Go Pin: A person may be Size is often a dependable gauge of the
convicted for exhibiting nude paintings peoples support, or lack of it.
and pictures if mainly for commercial, Obetention of a permit is for the use of
and not artistic, purposes. the public place and not a permit for
Freedman v. Maryland: The assembling.
administration of a censorship system Primicias v. Fugoso is the authority in
for moving pictures presents peculiar saying that local officials only have the
dangers to constitutionally protected power to regulate, and not prohibit,
speech; the burden of proving that the such meeting.
film is unprotected expression must rest De la Cruz v. Ela and the Navarro Case
on the censor; that judicial expanded such power to negotiate
determination must be obtained for where such an assembly would be held.
valid determination and; there must be
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FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

Taada v. Bagatsing: The Supreme o If they committed a crime or

Court is not precluded from regulating conspired against public peace
the time, place and manner of holding a and order, they may be
peaceable assembly. The content of the prosecuted.
speeches is what is protected. It is of Lawful Organizers + Unlawful Purpose =
the essence of respect for the Illegal Assembly
constitutional rights that the rally be U.S. v. Apurado: There is a protest
allowed, but it is equally this Courts against grievances to remove certain
duty to avoid such danger. public officials in the council chamber.
B.P. 880 otherwise known as the Public The defendants herein are acquitted of
Assembly Act states that a permit for the charge of sedition for this meeting is
holding a public assembly is not lawful, as it is the right of citizens
required if it is to be held: involved.
o In a private place Malabanan v. Remento: Certain student
o In the campus of a government- leaders were allowed to re-enroll and
owned and operated education finish their studies after being expelled
institution or; for holding a demonstration within the
o In a freedom park. premises of the university outside what
The written application shall be filed is permitted by the school authorities.
with the mayors office at least FIVE (5) According to Justice Fortas, the
DAYS BEFORE the scheduled meeting students did not shed their
and shall be acted upon WITHIN TWO constitutional rights to freedom of
(2) DAYS other wise, it is deemed speech or expression at the schoolhouse
granted. gate although these rights were not
DENIAL: Only upon clear and present unlimited.
danger. Malabanan was affirmed in Villar v.
Action on the application must be Technological Institution of the
communicated within TWENTY FOUR Philippines although some students
(24) HOURS to the applicant who may were not allowed to re-enroll due to
appeal the same to the appropriate academic deficiencies in which, as the
court. A decision must be reached Supreme Court held, should be
within TWENTY FOUR (24) HOURS. meticulously followed because such
institution has the right to set academic
(1) TESTS standards.
De Jonge v. Oregon: PBM Employees Association v. PBM: The
o Not as to the auspices but as to workers contention was sustained for:
the purpose of the meeting. 1) the loss that the management would
o Not as to the relations of the incur would not mean death for the
speakers but whether their company itself and; 2) they were
utterances transcend the bounds rallying not against the management or
of the freedom of speech which the company but vis--vis the Pasig
the Constitution protects. police.
Ivan Chris T. Luzuriaga, 1-O
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FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

RIGHT OF ASSOCIATION of barangay officials (Political parties are

inhibited from participating in barangay
Art. III, Sec. 8: elections)
In re: Edillion: Bar integration does not
The right of the people, including those compel the lawyer to associate with
employed in the public and private anyone. He is free to attend or not
sectors, to form unions, associations or attend the meetings of his Integrated
societies for purposes not contrary to Bar Chapter or vote or refuse to vote in
law shall not be abridged. its elections as he chooses. The only
compulsion to which he is subjected is
Comprehended in due process as it the payment of annual dues which is a
protects the persons liberty. valid exercise of police power by the
Deemed embraced in the freedom of State to uphold quality legal service.
expression because the organization can
be used as a vehicle for the expression ACCES TO INFORMATION
of views that have a bearing on public
welfare. Art. III, Sec. 7
For purposes not contrary to law is a
built-in limitation though unnecessary. The right of the people to information
The legislature cannot arbitrarily declare on matters of public concern shall be
a purpose unlawful if it is not inimical to recognized. Access to official records,
public welfare. and to documents and papers pertaining
People v. Ferrer: The Anti-Subversion to official acts, transactions, or
Act does not impair the right of decisions, as well as to government
association because it only aims to research data used as basis for policy
outlaw organizations aimed at the development, shall be afforded the
violent overthrow of the government; citizen subject to such limitations as may
Self-preservation is the ultimate value be provided by law.
of society.
Liberty Flour Mills Employees (Related to Art. VI, Sec. 16(4) requiring
Association v. Liberty Flour Mills, Inc.: It publication of legislative journals from
is the policy of the State to promote time to time excepting such parts as
unionism to enable workers to may, in the judgement of the house,
negotiate with management with more affect national security and Sec. 20
persuasiveness rather than independent which is the records and books of
bargaining. accounts of the Congress be open to the
Closed-Shop Agreement: A valid form of public in accordance with the law which
union security in employment wherein shall be audited by COA)
an employee, as a requisite for regular
employment, must join such union. Baldoza v. Hon. Dimaano: Judge
Occea v. COMELEC: Political neutrality Dimaano had the power to regulate the
was needed for the discharge of duties
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FREEDOM OF EXPRESSION
Based on the 2007 edition of Constitutional Law by Isagani Cruz

examination of judicial records although Neri v. Senate: Correct application of

it had no power to prohibit the same. executive privilege (the private
Subido v. Ozaeta: Registration officers communication involved diplomatic and
need not concern themselves with the national security matters)
motives, reasons and objects of persons Echegaray v. Secretary of Justice: A
seeking access to public records unless it convict has the right to know the
is for unlawful purposes or sheer and contents of the Lethal Injection Manual
idle curiosity. because it is a matter of public concern.
o OUTRIGHT REFUSAL TO Taada v. Tuvera: There is full
DISCLOSE: It is the limitation publication or none at all; Publication of
upon the availability of access to all laws and other measures having the
the information sought, which force of law is required because of the
only the Legislature may impose right to be informed of such.
o REGULATION OF MANNER TO
EXAMINE: It pertains to the -------------NOTHING FOLLOWS--------------
government agency charged
with the custody of public
records. Authority to regulate is
to be exercised solely to the end
that damage to, or loss of, public
records may be avoided.
Chavez v. PCGG: Restrictions to the right
of information include:
1. National security matters and
intelligence information.
2. Trade secrets and banking
transactions.
3. Criminal matters.
4. Other confidential information.
In Kapisanan ng mga Brodkasters sa
Pilipinas, the radio-TV coverage of
Estradas trial in the Sandiganbayan was
denied for it may unduly influence the
outcome of the case.
Senate v. Executive Secretary Ermita:
Executive privilege is recognized only in
relation to certain types of information
of a sensitive character. The
presumption inclines heavily against
executive secrecy and in favor of
disclosure.

Ivan Chris T. Luzuriaga, 1-O