FREEDOM OF EXPRESSION (SPEECH, PRESS, ASSEMBLY & PETITION)

Abrams v. United StatesBrief Fact Summary. The Petitioner, Abrams (Petitioner), was convicted of conspiring with the German government to write and distribute disloyal information about the Respondent, the United States (Respondent), during World War I.

Synopsis of Rule of Law. Unintended consequences of speech are treated as if the speaker intended such a reaction.

Facts. The Petitioner published and distributed articles critical of the Respondent throughout New York City. The articles were published in English and Yiddish to increase circulation. The Petitioner was born in Russia and claimed to be a rebel who did not believe in government of any form. Petitioner was charged with using abusive language about the form of United States government, using language intended to bring about contempt, scorn, and disrepute of the government, and using language intended to incite and encourage resistance to the war.

Issue. Can one be held responsible for the unintended consequences of one’s speech?Held. Yes. Prior cases have held this type of speech may be restricted in time of war.

Dissent. Speech may not be restricted unless the speaker actually intended to cause a disruptive action by the audience. To restrict such speech, is to shut down the “marketplace of ideas” and free exchange that has been the backbone of our nation’s growth.Discussion. Although this action was not meant to induce panic and disrupt the security actions of the nation, it was sufficiently negative in nature to cause such a reaction. Therefore, it is ruled that the authors knew or should have known that these reactions would result and so by default intended negativity.

BAYAN v. EXECUTIVE SECRETARY ERMITA G.R. NO. 169838; 25 APR 2006FactsRallies of September 20, October 4, 5 and 6, 2005 is at issue. BAYAN’s rally was violently dispersed. 26 petitioners were injured, arrested and detained when a peaceful mass action they was preempted and violently dispersed by the police. KMU asserts that the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of “Calibrated Preemptive Response” (CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España Avenue in front of the UST and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them. Three other rallyists were arrested.

All petitioners assail Batas Pambansa No. 880 The Public Assembly Act of 1985, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the “no permit, no rally” policy and the CPR policy announced on Sept. 21, 2005.

Petitioners Bayan, et al., contend that BP 880 is clearly a violation ofthe Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere regulations but are actually prohibitions. Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.

KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and

convincingevidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane.As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.

Respondents argued that petitioners have no standing. BP 880 entails traffic re-routing to prevent grave public inconvenience and serious or undue interference in the free flow of commerce and trade. It is content-neutral regulation of the time, place and manner of holding public assemblies. According to Atienza RA. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880. and that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies.

Issue Whether or Not BP 880 and the CPR Policy unconstitutional.

Held No question as to standing. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880. B.P. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. It refers to all kinds of public assemblies that would use public places. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to protection. Maximum tolerance1 is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally. There is, likewise, no priorrestraint, since the content of the speech is not relevant to the regulation.

The so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. Insofar as it would purport to differ from or be in lieu of maximum tolerance, this was declared null and void.

ABS-CBN Broadcasting Corporation v. Comelec Freedom of expression 323 SCRA 811

FACTS: Comelec came up with a resolution prohibiting the conduct of exit polls during elections for the reason that exit polls have the tendency to cause confusion.

HELD: Conducting exit polls and reporting their results are valid exercises of freedom of speech and of the press. A limitation on them may be justified only by a danger of such substantive character that the state has a right to prevent. The concern of the Comelec cannot be justified since there is no showing that exit polls cause chaos in voting centers.SWS vs Comelec

Facts: Petitioner SWS and KPC states that it wishes to conduct an election survey throughout the period of the elections and release to the media the results of such survey as well as publish them directly. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint.

Issue:Are the Comelec Resolutions prohibiting the holding of pre-polls and exit polls and the dissemination of their results through mass media, valid and constitutional?

Ruling:No. The Court held that Section (5)4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.”

Borjal v Court of Appeals 301 SCRA 1 January 14, 1999Facts: A civil action for damages based on libel was filed before the court against Borjal and Soliven for writing and publishing articles that are allegedly derogatory and offensive against Francisco Wenceslao, attacking among others the solicitation letters he send to support a conference to be launch concerning resolving matters on transportation crisis that is tainted with anomalousactivities. Wenceslao however was never named in any of the articles nor was the conference he was organizing. The lower court ordered petitioners to indemnify the private respondent for damages which was affirmed by the Court of Appeals. A petition for review was filed before the SC contending that private respondent was not sufficiently identified to be the subject of the published articles.

Issue: Whether or not there are sufficient grounds to constitute guilt of petitioners for libel.

Held: In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of the libelous publication. These requisites have not been complied with in the case at bar. The element of identifiability was not met since it was Wenceslaso who revealed he was the organizer of said conference and had he not done so the public would not have known.

The concept of privileged communications is implicit in the freedom of the press and that privileged communications must be protective of public opinion. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.

The questioned article dealt with matters of public interest as the declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. Respondent is also deemed to be a public figure and even otherwise is involved in a public issue. The court held that freedom of expression is constitutionally guaranteed and protected with the reminder among media members to practice highest ethical standards in the exercise thereof.

New York Times Co. v. SullivanBrief Fact Summary. The Plaintiff, Sullivan (Plaintiff) sued the Defendant, the New York Times Co. (Defendant), for printing an advertisement about the civil rights movement in the south that defamed the Plaintiff.

Synopsis of Rule of Law. The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Facts. The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page ad taken out in the New York Times. The advertisement was entitled, “Heed Their Rising Voices” and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South. Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police. The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false. There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the ad libelous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed.

Issue. Is the Defendant liable for defamation for printing an advertisement, which criticized a public official’s official conduct?

Held. No. Reversed and remanded.* Safeguards for freedom of speech and of the press are required by the First and Fourteenth Amendments of the United States Constitution (Constitution) in a libel action brought by a public official against critics of his official conduct.* Under Alabama law, a publication is libelous per se if the words tend to injure a person in his reputation or to bring him into public contempt. The jury must find that the words were published of and concerning the plaintiff. Once libel per se has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars.* Erroneous statement is inevitable in free debate and it must be protected if the freedoms of expression are to have the breathing space that the need to survive.* The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.* The Supreme Court of the United States (Supreme Court) holds that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. In this case, the rule requiring proof of actual malice is applicable.* The Defendant’s failure to retract the advertisement upon the Plaintiff’s demand is not adequate evidence of malice for constitutional purposes. Likewise, it is not adequate evidence of malice that the Defendant failed to check the advertisements accuracy against the news stories in the Defendant’s own files. Also, the evidence was constitutionally defective in another respect: it was incapable of supporting the jury’s finding that the allegedly libelous statements were made of and concerning the Plaintiff.Concurrence. Justice Hugo Black (J. Black) argued that the First and Fourteenth Amendments of the Constitution do not merely “delimit” a State’s power to award damages, but completely prohibit a State from exercising such a power. The Defendant had an absolute, unconditional right to publish criticisms of the Montgomery agencies and officials.

Discussion. In order for a public official to recover in a defamation action involving his official conduct, malice must be proved. Without the showing of malice, the Supreme Court felt that a defamation action in this case would severely cripple the safeguards of freedom speech and expression that are guaranteed in the First Amendment of the Constitution and applicable to the States via the Fourteenth Amendment of the Constitution.

New York Times Co. v. United States Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held that the Government failed to meet the requisite burden of proof needed to justify a prior restraint of expression when attempting to enjoin the New York Times and Washington Post from publishing contents of a classified study.

Synopsis of Rule of Law. Any system of prior restraints on expression comes to the Supreme Court bearing a heavy presumption against its invalidity. The Government “thus creates a heavy burden of showing justification for the enforcement of such a restraint.”

Facts. The United States sought to enjoin the New York Times and Washington Post from publishing contents of a confidential study about the Government’s decision making with regards to Vietnam policy. The District Court in the New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the Government had not met the requisite burden justifying such a prior restraint.

Issue. Whether the United States met the heavy burden of showing justification for the enforcement of such a restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study?Held. No. Judgments of the lower courts affirmed. The order of the Court of Appeals for the Second Circuit is reversed and remanded with directions to enter a judgment affirming the District Court. The stays entered June 25, 1971, by the Court are vacated. The mandates shall issue forthwith.

Dissent. The scope of the judicial function in passing upon activities of the Executive Branch in the field of foreign affairs is very narrowly restricted. This view is dictated by the doctrine of Separation of Powers. The doctrine prohibiting prior restraints does not prevent the courts from maintaining status quo long enough to act responsibly.The First Amendment is only part of the Constitution. The cases should be remanded to be developed expeditiously.Concurrence. To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment of the United States Constitution [Constitution].The First Amendment of the Constitution leaves no room for governmental restraint on the press. There is, moreover, no statute barring the publication by the press of the material that the Times and Post seek to publish.The First Amendment of the Constitution tolerates no prior judicial restraints of the press predicated upon

surmise or conjecture that untoward consequences may result. Thus, only governmental allegation and 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 the issuance of an interim restraining order. Unless and until the Government has clearly made its case, the First Amendment of the Constitution commands that no injunction be issued.The responsibility must be where the power is. The Executive must have the large duty to determine and preserve the degree of internal security necessary to exercise its power effectively. The Executive is correct with respect to some of the documents here, but disclosure of any of them will not result in irreparable danger to the public.The United States has not met the very heavy burden, which it must meet to warrant an injunction against publication in these cases.The ultimate issue in this case is whether this Court or the Congress has the power to make this law. It is plain that Congress has refused to grant the authority the Government seeks from this Court.

Discussion. This very divided opinion shows how heavy the Government’s burden is to justify a prior restraint of expressi.

Near v. MinnesotaBrief Fact Summary. A Minnesota law that “gagged” a periodical from publishing derogatory statements about local public officials was held unconstitutional by the Supreme Court of the United States (Supreme Court).

Synopsis of Rule of Law. The freedom of press is essential to the nature of a free state but that freedom may be restricted by the government in certain situations.

Facts. The Saturday Press (the Press) published attacks on local officials. The Press claimed that the chief of police had “illicit relations with gangsters.” Minnesota officials obtained an injunction in order to abate the publishing of the Press newspaper under a state law that allowed this course of action. The state law authorized abatement, as a public nuisance, of a “malicious, scandalous and defamatory newspaper, or other periodical. A state court order abated the Press and enjoined the Defendants, publishers of the Press (Defendants), from publishing or circulating such “defamatory and scandalous” periodicals.

Issue. Whether a statute authorizing such proceedings is consistent with the conception of the liberty of the press as historically conceived and guaranteed?Held. No. Judgment of the state court reversed. The fact that the liberty of press may be abused by miscreant purveyors of scandal does not effect the requirement that the press has immunity from previous restraints when it deals with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with the constitutional privilege. Therefore, a statute authorizing such proceedings is not consistent with the conception of the liberty of the press as historically conceived and guaranteed and is thus, unconstitutional. The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, before injunction issues, that the matter published is true and is published with good motives and for justifiable ends. This statute, if upheld, could lead to a complete system of censorship. Thus, the statute is a substantial infringement on the liberty of the press and in violation of the Fourteenth Amendment of the Constitution.

Dissent. This statute does not operate as a previous restraint on publication within proper meaning of that phrase.

Discussion. The Supreme Court of the United States (Supreme Court) in this case extended the presumption against prior restraint in the licensing context to judicial restraints as well.

Brandenburg v. OhioSyllabusAppellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute foradvocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reformand forvoluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U.S. 357, overruled.Reversed.

R.A.V. v. City of St. PaulBrief Fact Summary. St. Paul’s Bias-Motivated Crime Ordinance (the Ordinance) was held unconstitutional by the Supreme Court of the United States (Supreme Court) because it was substantially overbroad and impermissibly content-based.

Synopsis of Rule of Law. Content-based restrictions, as well as point-of-view restrictions, are presumably invalid.Facts. The Petitioner, R.A.V. (Petitioner) and several other teenagers made a cross and burned it inside the fenced yard of a black family. The city of St. Paul charged Petitioner under the Ordinance which forbids harmful conduct on the basis of race. Petitioner moved to have this count dismissed on the ground that the Ordinance was substantially overbroad and impermissibly content-based. The trial court granted that motion, but the state of Minnesota Supreme Court reversed.

Issue. Whether the Ordinance is substantially overbroad and impermissibly content-based?

Held. Yes. Judgment of the Minnesota Supreme Court reversed. The statute is unconstitutional because it prohibits otherwise protected speech solely on the basis of the subjects the speech addresses. This ordinance, even narrowly construed to apply only to “fighting words,” still clearly applies to “fighting words” that insult or provoke violence “on the basis of race.

Schenck v. United StatesBrief Fact Summary. The distribution of leaflets using impassioned language claiming that the draft was a violation of the Thirteenth Amendment of the United States Constitution (Constitution) and encouraging people to “assert your opposition to the draft” was held not to be protected speech.

Synopsis of Rule of Law. The character of every act depends on the circumstances in which it is done. The question in every case is 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 protect.

Facts. This case is based on a three count indictment. The first charge was a conspiracy to violate the Espionage Act of 1917. The second alleges a conspiracy to commit an offense against the United States. The third count alleges an unlawful use of the mails for the transmission of unlawful matter. The document in question claims that the draft is a violation of the Thirteenth Amendment of the Constitution and encourages people to “assert your opposition to the draft.” The Defendants, Schenck and other publishers of the leaflets (Defendants), were found guilty on all of the counts.

Issue. Whether the words used in the leaflets 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 protect?Held. Yes. Judgment of the lower court affirmed. In many places and in ordinary times, the Defendants in saying all that was said in the leaflets would have been within their constitutional rights. However, the character of every act depends on the circumstances in which it is done. The question in every case is 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 protect. When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. Therefore, the words used in the leaflets 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 protect.

Discussion. This case gave birth to the “clear and present danger” test.United States v. O’BrienBrief Fact Summary. The Defendant, O’Brien (Defendant), burned his selective service registration certificate and was convicted of violating a federal statute making it a crime to mutilate the certificate. The Defendant appealed, noting that his act was “symbolic speech” and should fall under the protection of the First Amendment of the United States Constitution (Constitution).

Synopsis of Rule of Law. This case is the basis for the O’Brien test: When speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify the limitations on First Amendment speech. A governmental regulation is sufficiently justified (1) if it is within the constitutional power of the government; (2) if it furthers governmental

interest, which is (3) unrelated to the suppression of free expression and (4) if the government’s interest outweighs the suppression of speech.

Facts. The District Court convicted the Defendant for violating the statute, and the Court of Appeals Reversed. The Supreme Court of the United States (Supreme Court) granted certiorari.

Issue. This case considers whether symbolic speech may be suppressed when the actions done in furtherance of the speech are contrary to governmental interest.Held. Reversed.The Supreme Court found that the governmental interest in preserving selective service registration cards outweighed Defendant’s interest in making his symbolic speech and that Congress had a legitimate and substantial interest in preventing the destruction of these cards. Further the court notes that unrestrained destruction of the cards would disrupt the functioning of the selective service system, which was a greater problem than the abridgment of Defendant’s rights.

Dissent. Judge William Douglas (J. Douglass) found that the Defendant’s conviction was not consistent with the First Amendment, if his speech did not significantly disrupt the rights of others or the interest of the government in regulating selective service.

Discussion. When considering suppression of symbolic speech, the interest of the government may be taken into consideration, if it outweighs the protection afforded by the First Amendment of the Constitution.

Texas v. JohnsonBrief Fact Summary. A conviction for burning the United States flag based on a Texas law was overturned after the Supreme Court of the United States (Supreme Court) found that the Texas law was unconstitutional.

Synopsis of Rule of Law. The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. It is not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid.

Facts. After publicly burning the American flag, the Defendant, Gregory Lee Johnson (Defendant), was convicted of desecrating a flag in violation of Texas law. The Court of Criminal Appeals overturned the conviction.

Issue. Whether Defendant’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment of the United States Constitution (Constitution)?Whether the state’s interest in preserving the flag as a symbol of nationhood justifies Defendant’s conviction?Held. Yes. Judgment of the Court of Criminal Appeals affirmed. The very purpose of a national flag is to serve as a symbol of our country. Pregnant with expressive content, the flag as readily signifies this nation as does the combination of letters found in “America.” Texas conceded that Defendant’s conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, Defendant’s burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution.No. Judgment of the Court of Criminal Appeals affirmed. The state’s restriction on Defendant’s expression is content-based. Therefore, the state’s asserted interest in preserving the special symbolic character of the flag must be subjected to the “most exacting scrutiny.” To say that the Government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning the flag as a means of political protest. Therefore, the state’s interest in preserving the flag as a symbol of nationhood does not justify Defendant’s conviction because it is not consistent with the First Amendment of the Constitution.

Dissent. It was for Defendant’s use of this symbol, not the idea that he sought to convey for which he was convicted.The interest of preserving the flag as a symbol of nationhood is legitimate and justified the Defendant’s conviction.

Discussion. This case resulted in battle lines being drawn between those in Congress who wanted to amend the Constitution to permit restraints on flag desecration and those who supported new legislation rather than constitutional amendment.

Tinker v. Des Moines School District (1969)Case SummaryIn 1965, John Tinker, his sister Mary Beth, and a friend were sent home from school for wearing black armbands to protest the Vietnam War. The school had established a policy permitting students to wear several political symbols, but had excluded the wearing of armbands protesting the Vietnam War. Their fathers sued, but the

District Court ruled that the school had not violated the Constitution. The Court of Appeals agreed with the lower court, and the Tinkers appealed to the Supreme Court.The Court's DecisionIn a 7-2 decision, the Supreme Court ruled that the students had the right to wear armbands to school to protest the Vietnam War. Justice Abe Fortas wrote for the majority. He first emphasized that students have First Amendment rights: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” While schools certainly have the right to establish rules relating to “the length of skirts or the type of clothing, to hair style,…[or] aggressive, disruptive action or even group demonstrations,” this case does not involve any of those issues. “The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, …with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.”Justice Hugo Black dissented. He pointed out that the case involved a small number of students who refused to obey the instructions of school officials, and argued that allowing this behavior would have a negative effect on schools and on the country as a whole.More on the CaseMary Beth Tinker eventually became a nurse and worked with the Veterans Administration. She later wrote that it was “a privilege to work with our veterans who had sacrificed part of their lives.… I work with a lot of paraplegics and quadriplegics, and some of them were injured in the Vietnam War… So I don't have any regrets about it at all. I'm proud to have been a part of anything that stopped the war.”The Supreme Court has dealt with other school cases since Tinker. In Bethel School District No. 403 v. Fraser,1986, the Court held that a high school student did not have the right under the First Amendment to use indecent language and sexual metaphors in a speech at a school assembly.In Hazelwood School District v. Kuhlmeier, 1988, the Court ruled that school officials could regulate the content of the student newspaper in any reasonable way. The principal had deleted student articles about teen pregnancy and about the impact of parental divorce on students at the school. In both Fraser and Kuhlmeier, the Court emphasized that students in public schools do not always have the same First Amendment rights as adults in other settings.

ADIONG VS COMELEC, 207 SCRA 713Facts:- On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws.-Section 15(a) of the resolution provides:Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof.Section 21 (f) of the same resolution provides:Sec. 21(f). Prohibited forms of election propaganda. —It is unlawful:xxx xxx xxx(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one: Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size.-Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."Issue: WON the COMELEC may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes.Held:

-The prohibition on posting of decals and stickers on “mobile” places whether public or private except in authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution.-The posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties.

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs. HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. G.R. No. 82398 April 29, 1988 HAL MCELROY petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

Ayer Vs CapulongPetitioner McElroy an Australian film maker, and his movie production company, Ayer Productions, envisioned, sometime in 1987, for commercial viewing and for Philippine and international release, the historic peaceful struggle of the Filipinos at EDSA. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the MTRCB as and other government agencies consulted. Ramos also signified his approval of the intended film production. It is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four fictional characters interwoven with real events, and utilizing actual documentary footage as background. David Williamson is Australia's leading playwright and Professor McCoy (University of New South Wales) is an American historian have developed a script. Enrile declared that he will not approve the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation. petitioners acceded to this demand and the name of Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. However, a complaint was filed by Enrile invoking his right to privacy. RTC ordered for the desistance of the movie production and making of any reference to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears substantial or marked resemblance to Enrile. Hence the appeal.

Issue: Whether or Not freedom of expression was violated

HELD : The Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert. The subject matter, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile The extent of that intrusion, as this Court understands the synopsis of the proposed film, may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family. His participation therein was major in character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the Philippines. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events

Barenblatt v. United StatesSyllabusSummoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, which was investigating alleged Communist infiltration into the field of education, petitioner, formerly a graduate student and teaching fellow at the University of Michigan, refused to answer questions as to whether he was then or had ever been a member of the Communist Party. He disclaimed reliance upon the privilege

against self-incrimination, but objected generally to the right of the Subcommittee to inquire into his "political" and "religious" beliefs or any "other personal or private affairs" or "associational activities" upon grounds set forth in a previously prepared memorandum, which was based on the First, Ninth, and Tenth Amendments, the prohibition against bills of attainder and the doctrine of separation of powers. For such refusal, he was convicted of a violation of 2 U.S.C. § 192 which makes it a misdemeanor for any person summoned as a witness by either House of Congress or a committee thereof to refuse to answer any question pertinent to the question under inquiry. He was fined and sentenced to imprisonment for six months.Held: Petitioner's conviction is sustained. Pp. 111-134.1. In the light of the Committee's history and the repeated extensions of its life, as well as the successive appropriations by the House of Representatives for the conduct of its activities, its legislative authority and that of the Subcommittee to conduct the inquiry under consideration here is unassailable, and House Rule XI, 83d Congress, which defines the Committee's authority, cannot be said to be constitutionally infirm on the score of vagueness. Watkins v. United States, 354 U.S. 178, distinguished. Pp. 116-123.(a) Rule XI has a "persuasive gloss of legislative history" which shows beyond doubt that, in pursuance of its legislative concerns in the domain of "national security," the House of Representatives has clothed the Committee with pervasive authority to investigate Communist activities in this country. Pp. 117-121. [p110](b) In the light of the legislative history, Rule XI cannot be construed so as to exclude the field of education from the Committee's compulsory authority. Pp. 121-123.2. The record in this case refutes petitioner's contention that he was not adequately apprised of the pertinency of the Subcommittee's questions to the subject matter of the inquiry. Watkins v. United States, supra, distinguished. Pp. 123-125.3. On the record in this case, the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and therefore the provisions of the First Amendment were not transgressed by the Subcommittee's inquiry into petitioner's past or present membership in the Communist Party. Pp. 125-134.(a) Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown. Pp. 126-127.(b) The investigation here involved was related to a valid legislative purpose, since Congress has wide power to legislate in the field of Communist activity in this Country and to conduct appropriate investigations in aid thereof. Pp. 127-129.(c) Investigatory power in this domain is not to be denied Congress solely because the field of education is involved, and the record in this case does not indicate any attempt by the Committee to inquire into the content of academic lectures or discussions, but only to investigate the extent to which the Communist Party had succeeded in infiltrating into our educational institutions persons and groups committed to furthering the Party's alleged objective of violent overthrow of the Government. Sweezy v. New Hampshire, 354 U.S. 234, distinguished. Pp. 129-132.(d) On the record in this case, it cannot be said that the true objective of the Committee and of the Congress was purely "exposure," rather than furtherance of a valid legislative purpose. Pp. 132-133.(e) The record is barren of other factors which, in themselves, might lead to the conclusion that the individual interests at stake were not subordinate to those of the Government. P. 134.102 U.S.App.D.C. 217, 252 F.2d 129, affirmed. [p*111]

Branzburg v. HayesBrief Fact Summary. The Petitioners, Branzburg, Pappas and Caldwell, newspaper reporters (Petitioners), brought suit seeking a declaration that the freedom of the press extended to personal protection regarding sources and story information.

Synopsis of Rule of Law. This case stands for the proposition that a reporter is protected by the First Amendment of the United States Constitution (Constitution) insofar as they cannot be compelled to testify regarding their stories.

Facts. Branzburg one of the Petitioners observed the making of hashish from marijuana and was later called before a grand jury to implicate the persons involved. Two of the other Petitioners, Pappas and Caldwell, both covered the Black Panthers and were later called to a federal grand jury to discuss their findings. All three reporters refused to participate in the grand juries claiming a newman’s privilege.

Issue. This case considers whether reporters are to be held to the same standards as other citizens, which would subject them to grand jury testimony.Held. The Supreme Court of the United States (Supreme Court) held that reporters are subject to grand jury investigations, but in limited circumstances can quash evidence and/or refuse to cooperate under their First Amendment freedom of the press, when their own safety or the identity of an informant would be compromised.

Dissent. Justice Potter Stewart (J. Stewart), in his dissent, held that the Supreme Court’s decision would serve to both suppress the press (for fear of being subject to grand juries) and to deter the administration of justice because reporters would be afforded procedural vehicles which would allow them to get around their duties to testify.Concurrence. Justice Lewis Powell (J. Powell) concurred, agreeing that a newsman is not immune from testimony, but rather he is afforded protective, procedural vehicles stemming from his First Amendment constitutional rights as a reporter.

Discussion. There is no “newsman’s privilege” as it has been conceived. Reporters are subject to the same civic duties as are other citizens, but they may use the First Amendment of the Constitution as a shield to protect their sources when they could be compromised.

Bridges v. California (1941)The U.S. Supreme Court held in 1941, in Bridges v. California and Times-Mirror Co. v. Superior Court (the two appeals were decided together), that prior restraint of journalists, specifically pretrial coverage, is unconstitutional, unless there is a "clear and present danger to the administration of justice." The court went on to say that this clear and present danger standard was "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."In the case Bridges v. California , a telegram a union official had sent the U.S. Secretary of Labor was published in local newspapers in California. "In the telegram, sent while the ruling on a motion for a new trial in a labor dispute was pending, Harry Bridges threatened to have his union strike if the judge's 'outrageous' decision were enforced. The lower appellate courts upheld the leader's conviction for contempt as an interference with the 'orderly administration of justice' (Moore, p. 110)."In the case Times Mirror Co. v. Superior Court, the Los Angeles Times published a series of editorials while a decision was pending in the sentencing of two union members convicted of assaulting non-union employees. In the editorials the two were referred to as "sluggers for pay" and men "who commit mayhem for wages" and in the editorials it went on to say that the judge would be committing a "serious mistake" if he granted probation. At first, the paper was convicted for contempt, a decision which was upheld by both lower appellate courts as well as the California Supreme Court.However, the U.S. Supreme Court overturned these decisions on the grounds that no clear and present danger had been shown in either of the two cases.

Burgos v. Chief of Staff, AFP [GR 64261, 26 December 1984]En Banc, Escolin (J): 10 concur, 1 took no partFacts: On 7 December 1982, Judge Ernani Cruz-Paño, Executive Judge of the then CFI Rizal [Quezon City], issued 2 search warrants where the premises at 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the “Metropolitan Mail” and “We Forum” newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of Jose Burgos, Jr. publisher-editor of the “We Forum” newspaper, were seized. A petition for certiorari, prohibition and mandamus with preliminary mandatory and prohibitory injunction was filed after 6 months following the raid to question the validity of said search warrants, and to enjoin the Judge Advocate General of the AFP, the city fiscal of Quezon City, et.al. from using the articles seized as evidence in Criminal Case Q-022782 of the RTC Quezon City (People v. Burgos).Issue: Whether allegations of possession and printing of subversive materials may be the basis of the issuance of search warrants.Held: Section 3 provides that no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. In mandating that “no warrant shall issue except upon probable cause to be determined by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce”; the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. Herein, a statement in the effect that Burgos “is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under PD 885, as amended” is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant. Further, when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, the

application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice.

Cantwell v. ConnecticutBrief Fact Summary. A Jehovah’s Witnesses was convicted on a charge of breach of the peace for playing a phonograph record sharply critical of the Catholic religion to persons he encountered on the street.

Synopsis of Rule of Law. A State may proscribe speech if it amounts to a breach of the peace, which encompasses not only violent acts, but also acts and words likely to produce violence in others.

Facts. Jesse Cantwell (Cantwell), a Jehovah’s Witnesses, was convicted on the charge of breach of the peace for playing a phonograph record sharply critical of the Catholic religion to persons he encountered on the street. His intent was to proselytize his listeners. Prior to his arrest, there was no evidence that Cantwell’s deportment was noisy or offensive. Moreover, although the message on the record was offensive, it was only played to persons who voluntarily agreed to listen.

Issue. Did the arrest and conviction of Cantwell for violating the common law offense of breach of the peace violate his constitutional rights of free speech under the First Amendment of the United States Constitution (Constitution)?Held. Yes. The lower court is reversed.Justice Owen Roberts (J. Roberts) stated that while it is obvious that the principles of freedom of speech and religion do not sanction incitement to riot or violence, it is equally obvious that a State may not unduly suppress free communication of views under the guise of maintaining desirable conditions. With these considerations in mind, we note that there was no evidence of assaultive behavior or threatening of bodily harm, no truculent bearing, no profane, abusive, indecent remarks directed to the person of the hearer. Thus, it cannot be said that Cantwell’s actions resulted in a breach of the peace or an incitement to a breach thereof.

Discussion. By ruling that the facts of this case, speaking to an audience hostile to ones message, does not amount to a breach of the peace, the Supreme Court of the United States (Supreme Court) gives insight into the degree of public disorder it requires to permit a government to regulate free expression on those grounds.

Consolidated Edison Co. of New York v. Public Service CommissionBrief Fact Summary. The Petitioner, Consolidated Edison (Petitioner), sought to place written materials regarding nuclear power in its billing envelopes. The National Resources Defense Counsel (NRDC) disagreed with this practice and filed a complaint with the Respondent, the Public Service Commission (Respondent), asking that Petitioner’s envelopes be opened to contrasting views.

Synopsis of Rule of Law. When no valid time, place and manner exception exists, political speech cannot be suppressed.

Facts. The Petitioner sought to place written materials regarding nuclear power in its billing envelopes. The NRDC disagreed with this practice and filed a complaint with the Respondent asking that Petitioner’s envelopes be opened to contrasting views. The Respondent did not grant this request, but instead barred utility companies from including any political viewpoints in their bill inserts. The Petitioner filed suit, seeking review of the bar on its political speech. The Court of Appeals of New York agreed with Respondent, that the order of the commission did not infringe on Petitioner’s First Amendment rights because inclusion of the Petitioner’s viewpoints in all envelopes infringed on the rights of their customers to not accept the speech and therefore the time, place and manner of the speech was inappropriate. The Petitioner Edison appealed to the United States Supreme Court (Supreme Court), which granted certiorari.

Issue. This case considers whether it is constitutionally acceptable to suppress political viewpoints when they are shared with a mass audience, through envelope inserts.Held. Judge Lewis Powell Jr. (J. Powell). Reversed.The Respondent presented several theories to the court. First, it argued that the subject matter of the inserts addressed controversial issues of public policy, which was a permissible subject-matter regulation. The court found, in that instance, that while nuclear power may be a controversial topic, the expression of Petitioner’s opinion did not cause public upheaval, and therefore the suppression of the inserts directly infringed on the freedom of speech protected by the First and Fourteenth Amendments of the United States Constitution (Constitution).Respondent also argued that suppression of the inserts was necessary to avoid forcing one viewpoint on the public. The court rejected this argument, noting that where speech is communicated to many listeners, it cannot be prohibited except where the audience cannot avoid the speech. In the case of envelope inserts, consumers are free to discard the materials without reading them and are hardly considered to be captive to another’s view.

Dissent. Justice Harry Blackmun (J. Blackmun)In his dissent, J. Blackmun noted that the Petitioner, as a public utility, has a monopoly over the consumers and as such, does have a captive audience. J. Blackmun also suggests that the Petitioner is free to express itself in any manner, but should not use a billing envelope, which is integral to its business.Concurrence. Justice John Paul Stevens (J. Stevens)In his concurrence, J. Stevens focused on the language of the First Amendment of the Constitution, noting that any suppression of expression on a particular topic, just because it may be controversial, is an unconstitutional abridgment of freedom of speech.Discussion. This is among the first of a line of cases dealing with the expression of companies. While there was a plurality opinion, it is important to consider all sides of this debate, as it is ongoing.

DE JONGE VS OREGONFacts of the caseOn July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the audience regarding jail conditions in the county and a maritime strike in progress in Portland. While the meeting was in progress, police raided it. De Jonge was arrested and charged with violating the State's criminal syndicalism statute. The law defines criminal syndicalism as "the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution." After being convicted, De Jonge moved for an acquittal, arguing that the evidence was insufficient to warrant his conviction. Disagreeing, the State Supreme Court distinguished that the indictment did not charge De Jonge with criminal syndicalism, but rather that he presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group called by the Communist Party, which was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage.QuestionDoes Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth Amendment?ConclusionYes. In an opinion delivered by Chief Justice Charles E. Hughes, the Court held that the Oregon statute, as applied, violated the due process clause of the Fourteenth Amendment. After reviewing the record, the Court determined that De Jonge's sole offense was assisting in a public meeting held under the auspices of the Communist Party. The Court reasoned that to preserve the rights of free speech and peaceable assembly - principles embodied in the Fourteenth Amendment - not the auspices under which a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the bounds of freedom of speech must be examined, which had not occurred in De Jonge's case. Justice Harlan Fiske Stone took no part in the consideration or decision of the case.

Dennis v. United StatesBrief Fact Summary. The Petitioners, Dennis and others (Petitioners) were convicted for (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. The constitutionality of the statute under which the Petitioners were convicted was challenged.

Synopsis of Rule of Law. For an impediment on free expression to be permissible, the gravity of the evil, discounted by its improbability of coming about, must sufficiently outweigh the invasion of free speech necessary to avoid the danger.

Facts. The Smith Act (the Act) made it a criminal offense for a person to knowingly or willfully advocate the overthrowing of any government in the United States by force or to attempt to commit or conspire to commit the crime the same. The Petitioners were brought up on charges under the Act for allegedly (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. It was clear from the record that the leaders of the Communist Party intended to initiate a revolution when the opportunity came. The Trial Court found the Petitioners guilty. The Court of Appeals affirmed. The constitutionality of the statute under which the Petitioners were convicted was challenged.

Issue. Was the statute invalid by its own terms because it prohibited academic discussions on topics such as that of the merits of Marxism-Leninism?Held. No. The Court of Appeals is affirmed.Chief Justice Fred Vinson (J. Vinson) We must apply the “clear and present danger” test. Accordingly, we note that the overthrow of the Government by force is certainly a substantial enough interest for the Government to limit speech. Obviously, “clear and present danger” does not mean the government may not act until the Putsch has been plotted and on is the verge of being executed.

On the facts, the court was convinced that the requisite danger to act existed here: (1) the formation by the Petitioners of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders (the Petitioners) felt it was time for action; (2) the inflammable nature of world conditions; (3) similar uprisings in other countries; and (4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned. Thus, the convictions of the Petitioners were justified.

Dissent.Justice Hugo Black (Justice Black) While it is true that unfettered communication of ideas does entail danger, the benefits in the eyes of the Founders of this Nation, derived from free expression were worth the risk.Justice William Douglas (Justice Douglas) If this were a case where the speaker was teaching techniques of sabotage, the assassination of the President, or the planting of bombs, I would concur in the judgment. But, the reality is that no such evidence was introduced at trial.Concurrence.Justice Robert Jackson (J. Jackson) An individual cannot claim the constitutional protections of the First Amendment in advocating or teaching the overthrow of government by violence. I think such conduct can be made a crime, even without requiring a showing of an extremely high probability of success of a scheme.Justice Felix Frankfurter (J. Frankfurter) The results we have reached are the product of a careful weighing of the following factors: (1) that social value of the speech being prohibited; (2) the chilling effect on legitimate speech that the punishment of any form of speech may have; and (3) the interest in the government in security.

Discussion. The Supreme Court of the United States (Supreme Court) is essentially allowing the prohibitions of advocacy of a particular doctrine in this case – the overthrow of the government by force. In later opinions the Supreme Court will adopt a more rigid test that focuses on whether a speaker is advocating actions.

J.B.L. Reyes vs. Bagatsing, GR No. 65366 October 25, 1983Facts : Petitioner, retired Justice JB .L Reyes filed a petition to respondent, Mayor Ramon Bagatsing, the city mayor of manila that on behalf of anti-bases coalition sought a permit from the city of manila to hold a peaceful march and rally on october 26, 1983 from 2.00 to 5.00 in the afternoon, starting from the luneta, a public park, to the gates of united states embassy, hardly two blocks away. Once there, and in an open space of the public property, a short program would be held.

On october 20, 1983 the petitioner filed a suit for mandamus with alternative prayer for writ of preliminary mandatory injunction because due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On october 25, 1983, the answer of respondent mayor was filed on his behalf by assistant solicitor general eduardo g. montenegro. It turned out that on october 19, suc permit was denied.

Issues :

1. Whether or not holding a rally in front of the US embassy would be applicable or a violation of Ordinance no.7295 of the city of manila.

2. Whether or not the denial of the exercise of the constitutional rights of free speech and peaceably assembly was justified by clear and present danger.

Ruling : The petition was granted. The Supreme Court granted the mandatory injunction allowing the proposed march and rally. The court found that there was no clear and present danger of a substantive evil to a legitimate public interest that would justify the denial of the exercise of the constitutional rights of free speech and peaceably assembly.Our country is signatory of the Vienna Convention. It is binding in our laws. The second paragraph of its Article 22 that the receiving state is under a special duty to take appropriate steps tp protect the premise of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. The constitution adopts the generally accepted principles of international law as part of the law of the land. That being the case, if there were clear and present danger of any intrusion or damage, or disturbance of the of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the embassy.

MANUEL LAGUNZAD, petitioner,vs.MARIA SOTO VDA. DE GONZALES and THE COURT OF APPEALS, respondents.FACTS:

Sometime in August, 1961, petitioner Manuel Lagunzad, began the production of a movie entitled "The Moises Padilla Story". It was based mainly on the copyrighted but unpublished book of Atty. Ernesto Rodriguez, Jr., entitled "The Long Dark Night in Negros" subtitled "The Moises Padilla Story".The book narrates the events which culminated in the murder of Moises Padilla who was then a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental, during the November, 1951 elections. Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted for that murder. In the book, Moises Padilla is portrayed as "a martyr in contemporary political history."Although the emphasis of the movie was on the public life of Moises Padilla, there were portions which dealt with his private and family life including the portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales, private respondent herein, and of one "Auring" as his girlfriend. On October 5, 1961, Mrs. Nelly Amante, half-sister of Moises Padilla, for and in behalf of her mother, private respondent, demanded in writing for certain changes, corrections and deletions in the movie. On the same date, October 5, 1961, after some bargaining, the petitioner and private respondent executed a “Licensing Agreement” where the petitioner agreed to pay the private respondent the sum of P20,000.00 payable without need of further demand, as follows: P5,000.00 on or before Oct. 10, 1961; P10,000.00 on or before Oct. 31, 1961; and P5,000.00 on or before November 30, 1961. Also the Licensor (private respondent) grants authority and permission to Licensee (Petitioner) to exploit, use, and develop the life story of Moises Padilla for purposes of producing the PICTURE, and in connection with matters incidental to said production, such as advertising and the like, as well as authority and permission for the use of LICENSOR's name in the PICTURE and have herself portrayed therein, the authority and permission hereby granted, to retroact to the date when LICENSEE first committed any of the acts herein authorized. After its premier showing on October 16, 1961, the movie was shown in different theaters all over the country. Because petitioner refused to pay any additional amounts pursuant to the Agreement, on December 22, 1961, private respondent instituted the present suit against him praying for judgment in her favor ordering petitioner 1) to pay her the amount of P15,000.00, with legal interest from the filing of the Complaint; 2) to render an accounting of the proceeds from the picture and to pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's fees equivalent to 20% of the amounts claimed; and 4) to pay the costs. Petitioner contended in his Answer that the episodes in the life of Moises Padilla depicted in the movie were matters of public knowledge and was a public figure; that private respondent has no property right over those incidents; that the Licensing Agreement was without valid cause or consideration and that he signed the same only because of the coercion and threat employed upon him. As a counterclaim, petitioner sought for the nullification of the Licensing Agreement as it constitutes an infringement on the constitutional right of freedom of speech and of the press. Both the trial court and the Court of Appeals ruled in favour of the private respondent.

ISSUES:

1. Whether or not private respondent have any property right over the life of Moises Padilla since the latter was a public figure.2. Whether or not the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press.

RULING:

1. Yes. While it is true that petitioner had purchased the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the members of his family. As held in Schuyler v. Curtis,” a privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased."Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a figure he or she may be. In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 2. No. From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition.The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and of the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing-of-interests test." The principle requires a court to take

conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation." In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of -freedom of expression invoked by petitioner. Taking into account the interplay of those interests, we hold that under the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern.

MALABANAN V. RAMENTO (CASE DIGEST)Facts: Petitioners were officers of the Supreme Student Council of respondent University. They sought and were granted by tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science basketball court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at the second floor lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science Building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly.Then on September 9, 1982, they were formed through a memorandum that they were under preventive suspension for one academic year for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages against private respondents.Issue: WON the suspension of the students for 1 academic year was violative of the constitutional rights of freedom pf peaceable assembly and free speech?Decision: Yes. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of peaceable assembly carries with it the implication that the right to free speech has likewise been disregarded. Both are embraced in the concept of freedom of expression which is Identified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship or punishment and which “is not to be limited, much less denied, except on a showing … of a clear and present danger of a substantive evil that the state has a right to prevent.” 7It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court to lay 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 present. As a corollary, the utmost leeway and scope is accorded the content of the placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever grievances that may be aired being susceptible to correction through the ways of the law. If the assembly is to be held in school premises, permit must be sought from its school authorities, who are devoid of the power to deny such request arbitrarily or unreasonably. In granting such permit, there may be conditions as to the time and place of the assembly to avoid disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be violations of its terms, the penalty incurred should not be disproportionate to the offense. Petition Granted. One week suspension had been served.

Amelito Mutuc vs Commission on ElectionsAmelito Mutuc was a candidate for delegate to the Constitutional Convention (1970). His candidacy was given due course by the Commission on Elections (COMELEC) but he was prohibited from playing his campaign jingle on his mobile units because that was an apparent violation of COMELEC’s ban (via a COMELEC resolution) “to purchase, produce, request or distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of whatever nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes, and the like, whether of domestic or foreign origin.” It was COMELEC’s contention that the jingle proposed to be used by Mutuc is a recorded or taped voice of a singer and therefore a tangible propaganda

material (falling under and the like’s category), and under the above COMELEC rule, the same is subject to confiscation.ISSUE: 1. Whether or not COMELEC’s contention is correct.2. Whether or not the COMELEC ban is valid.HELD:1. No. By virtue of Ejusdem Generis, general words following any enumeration must be of the same class as those specifically referred to. COMELEC contended that the ban makes unlawful the distribution of electoral propaganda gadgets, mention being made of pens, lighters, fans, flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, and cigarettes, and concluding with the words “and the like.” For COMELEC, the last three words sufficed to justify such an order. The Supreme Court did not agree. It is quite apparent that what was contemplated in the said law violated by Mutuc was the distribution of gadgets of the kind referred to as a means of inducement to obtain a favorable vote for the candidate responsible for its distribution. It does not include campaign jingles for they are not gadgets as contemplated by the law.2. No. This is a curtailment of Freedom of Expression. The Constitution prohibits the abridgment of the freedom of speech.

Freedom of Speech, Expression, of the Press, Right of the People Peaceably to AssembleConstitutional Law

inShareCase Doctrines Section 4- Constitution. 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.

A. Prior Restraint

Eastern Broadcasting v. Dans – The test of limitations on freedom of expression continues to be the CLEAR AND PRESENT DANGER RULE – that words are used in such a circumstance and are of such a nature as to create a clear and present danger that they will bring about the substantial evils that a lawmaker has a right to prevent. Government has a right to be protected against broadcasts which incite listeners to overthrow it

Chavez v. Gonzales – Hello Garci Case – Tests for restraint – dangerous tendency doctrine, clear and present danger rule and balancing of interest test; aspects of freedom of the press – freedom from prior restraint and freedom from subsequent punishment B. Subsequent Punishment

People v. Perez – seditious remarks – Criticisms against the branches of government within the range of liberty and speech unless the intention and the effect be seditious

Gonzales v. COMELEC – prolonged political campaigns – freedom of expression not absolute; The speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. There is to be then no previous restraint to the communication of views or subsequent punishment unless there be a clear and present danger of substantive evil that Congress has the right to prevent. C. Freedom of Expression and the electoral process

Sanidad v. COMELEC – prohibition regarding certain forms of propaganda a valid exercise of police power of the state to prevent perversion and prostitution of electoral process

Adiong v. COMELEC – using stickers to campaign – ed

ABS-CBN v. COMELEC – exit polls – allowed

SWS v. COMELEC – releasing surveys results before the election – allowed D. Freedom of Expression and the Courts

IN RE: EMIL JURADO – journalist and lawyer at the same time - Right to private reputation. Judges are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent standards of honesty, integrity, and competence than are commonly required from private persons. Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a publicofficial, should enjoy a like immunity. The knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

PEOPLE V. GODOY - cited for contempt based on the latter’s article in the newspaper - (1) There’s a need to make a distinction between adverse criticism of the court's decision after the case is ended and"scandalizing the court itself." The latter is not criticism; it is personal and scurrilous abuse of a judge as such, in which case it shall be dealt with as a case of contempt. Contempt proceedings dismissed. Such comments may constitute a libel against the judge, but it cannot be treated as in contempt of the court's authority. (2) In case of a post-litigation newspaper publication, fair criticism of the court, itsproceedings and its members, are allowed. However, there may be a contempt of court, even though the case has been terminated, if the publication is attended by either of these two circumstances:

a. Where it tends to bring the court into disrespect or, in other words, to scandalize the court; orb. Where there is a clear and present danger that the administration of justice would be impeded. And this brings us to the familiar invocation of freedom of expression usually resorted to as a defense incontempt proceedings.

IN RE: RESOLUTION A.M. 98-7-02 SC - resolution prohibiting demonstrations within a radius of 200 meters from the boundary of any hall of Justice. - The Court, it would seem, has the power topromulgate “rules concerning conduct of demonstrations in the vicinity of the courts to assure the people of an impartial and orderly administration of justice. It was anchored on Art. VIII Sec. 5 (5)RE: RADIO/TV COVERAGE OF ESTRADA TRIAL - Can the trial of Estrada in the Sandiganbayan or any other court be broadcasted in TV or radio? NO. An accused has a right to a public trial, but it isnot 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. E. UNPROTECTED SPEECH – LIBEL, OBSCENITY

BORJAL V. COURT OF APPEALS - Borjal published in his editorial column in the Philippine Star about certain anomalous activities of an “organizer of a conference” - (1) Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. Thedoctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that suchdiscreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it mightreasonably be inferred from the facts.

OCAMPO V. SUN STAR PUBLISHING - graft charges filed against the judge. - (1) Generally, every defamatory information is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following instances:

a. A private communication made by any person to another in the performance of any legal, moral or social duty;b. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceeding which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.—the subject articles are under this exemption.

Pita v. CA – Pinoy Playboy - Miller test (3 Tests)(a) whether the average person, applying contemporary standards’ would find the work, taken as a whole appeals to the prurient interest. (b) whether the work depicts or describes, in a patently offensiveway, sexual conduct specifically defined by the applicable state law. (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. F. ASSEMBLY AND PETITIONPRIMICIAS V. FUGOSO - public meeting at Plaza Miranda - (1) A statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in them issuance of licenses, to a consideration, the time, place, and manner of the parade and procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing and are not invested with arbitrary discretion to issue or refuse license. (2) In the exercise of police power, the council may, in its discretion, regulate the exercise of such rights in a reasonable manner, but cannot suppress them, directly or indirectly, by attempting to commit the power of doing so to the mayor or any other officer. The discretion with which the council is vested isa legal discretion, to be exercised within the limits of the law, and not discretion to transcend it or to confer upon any city officer and arbitrary authority, making him in its exercise a petty tyrant.

NAVARRO V. VILLEGAS - Sunken Gardens as alternative to Plaza Miranda - The Mayor cannot be compelled to issue the permit. A permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensingauthority if it be shown that a clear and present danger of a substantive evil if no change was made.

JBL REYES V. MAYOR BAGATSING - a peaceful march and rally from Luneta park to the gates of the US Embassy. - (1) The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. (2) If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. (3) Application for permit should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant but at another place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such imminent and grave danger of a substantive evil, the applicants must be heard on the matter. (4) Decision of the licensing authority must be transmitted to the applicants at the earliest opportunity.MIRIAM COLLEGE V. COURT OF APPEALS – Libog Article - (1) The right of the students to free speech in school premises is not absolute. The right to free speech must always be applied in light of the special characteristics of

the school environment. Thus, while the court upheld the right of the students to free expression in these cases, disciplinary action by the school for "conduct by the student, in class or out of it, which for any reason - whether it stems from time, place, or type of behavior - which materially disrupts classwork or involves substantial disorder or invasion of the rights of others were not ruled out. (2) The school cannot suspend or expel a student solely on the basis of the articles he or she has written, except when such articles materially disrupt class work or involve substantial disorder or invasion of the rights of others.JACINTO V. COURT OF APPEALS – teachers and mass actions - mass actions then staged. That given the return-to-work orders issued by the then DECS Secretary, they still refused to return to work, they were then suspended and later on dismissed from service. - Where public school teachers absent themselves without proper authority, from their schools during regular school days, in order to participate in mass protest, their absence ineluctably results in the non-holding of classes and in the deprivation of students of education, for which they are responsible, and they may be penalized not for their exercise of their right to peaceably assemble and to petition the government for a redress of grievances but for conduct prejudicial to the best interest of the service.