R.  ACCESS TO PUBLIC INFORMATION

 

Section 7, Art. III. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

·         the citizenry has a right to know what is going on in the country and in his government so he can express his views thereon knowledgeably and intelligently.

 

Rights Guaranteed

 

1.     Right to information on matters of public concern ; and

 

2.     Corollary right of access to official records and documents.

 

·         These are political rights that are available to citizens only (Bernas, Philippine Constitution, p. 85).

 

Limitations:  “As may be provided by law”

 

Valmonte v Belmonte 1989	The people have a right to access official records but they can’t compel custodians of official records to prepare lists, abstracts, summaries and the like, such not being based on a demandable legal right.   Then right to privacy belongs to the individual and must be invoked by the individual.  A public agency like the GSIS cannot invoke the right to privacy.
Baldoza v Dimaano 1976	Judges cannot prohibit access to judicial records. However, a judge may regulate the manner in which persons desiring to inspect, examine or copy records in his office, may exercise their rights.
Legaspi v Civil Service Commission 1987	Personal interest is not required in asserting the right to information on matters of public concern. What matters constitute “public concern” should be determined by the court on a case to case basis.
Chavez v PCGG 1998	Public concern (def.) – writings coming into the hands of public officers in connection with their official functions Ill-gotten wealth is, by its nature, a matter of public concern. Privileged communication: (1) national security, (2) trade secrets, (3) criminal matters pending in court,
Echegaray case	SC held that making the Lethal Injection Manual inaccessible to the convict was unconstitutional.

 

 

 

S.  FREEDOM OF EXPRESSION

 

Freedom of Speech – “at once the instrument and the guaranty and the bright consummate flower of all liberty.” (Wendell Philips)

 

Scope

• Freedom of Expression is available only insofar as it is exercised for the discussion of matters affecting the public interest. Purely private interest matters do not come within the guaranty (invasion of privacy is not sanctioned by the Constitution).
• covers ideas that are acceptable to the majority and the unorthodox view. (One of the functions of this freedom is “to invite dispute” – US Supreme Court; “I may not agree with what you say, but I will defend to the death your right to say it.” - Voltaire)
• The freedom to speak includes the right to silent. (This freedom was meant not only to protect the minority who want to talk but also to benefit the majority who refuse to listen. - Socrates)

 

Importance

 

The ultimate good desired is better reached by a free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out.

 

Modes of Expression

 

(a)   Oral and written language

(b)   Symbolisms (e.g. bended knee, salute to the flag, cartoons)

 

Elements of Freedom of Expression

 

(1)   Freedom from prior restraint or censorship

 

(2)   Freedom from subsequent punishment

 

 

Freedom From Previous Restraint or Censorship

 

Section 4, Art. III. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

 

 

Censorship – conditions the exercise of freedom of expression upon the prior approval of the government. Only those ideas acceptable to it are allowed to be disseminated.

 

·         Censor, therefore, assumes the role of arbiter for the people, usually applying his own subjective standards in determining the good and the not. Such is anathema in a free society.

 

·         In New York Times v. United States, the Court held that prohibition of “prior restraint” is not absolute, although any system of prior restraint comes to court bearing a heavy presumption against its constitutionality.

 

·         In Near v. Minnesota, the exceptions to the prohibition of “prior restraint is enumerated by the Court, thus:  “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort ....  No one would question but that government might prevent actual obstruction to its recruiting service or the publication of sailing dates of transports or the number or location of troops....  The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.”

 

·         In SWS v. Comelec, Sec.  1 of RA No. 9006, the Fair Election Act says that surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven days before an election.  The provision is challenged as violative of freedom of expression.  The Court held that as prior restraint, the rule is presumed to be invalid.  The power of the Comelec over media franchises is limited to ensuring “equal opportunity, time, space and the right to reply” as well as to reasonable rates of charges for the use of media facilities for “public information and forums among candidates.”  Here the prohibition of speech is direct, absolute and substantial.  Nor does the rule pass the O'Brien test for content related regulation because (1)  it suppresses one type of expression while allowing other types such as editorials, etc. and (2)  the restriction is greater than what is needed to protect government interest because the interest can be protected by narrower restriction such as subsequent punishment.

 

·         In Re: Request for Radio-TV Coverage of the Estrada Trial, the Court held that the propriety of the Estrada trial involves the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial...  With the possibility of losing not only the precious liberty but also the very life of an accused, it behooves all to make absolutely certain that an accused receives a verdict solely on the basis of a just and dispassionate judgment...”

 

·         The doctrine of freedom of speech was formulated primarily for the protection of “core speech,” i.e., speech which communicates political, social or religious ideas.  Commercial speech, however, does not.

 

Grosjean vs American Press Co.	There need not be total suppression; even restriction of circulation constitutes censorship
Burgos vs Chief of Staff	the search, padlocking and sealing of the offices of Metropolitan Mail and We Forum by military authorities, resulting in the discontinuance of publication of the newspapers, was held to be prior restraint
Mutuc vs COMELEC	the COMELEC prohibition against the use of taped jingles in the mobile units used in the campaign was held to be unconstitutional, as it was in the nature of censorship
Sanidad vs COMELEC	the Court annulled the COMELEC prohibition against radio commentators or newspaper columnists from commenting on the issues involved in the scheduled plebiscite on the organic law creating the Cordillera Autonomous Region as an unconstitutional restraint on freedom of expression
But...
Gonzales vs COMELEC	the Court upheld the validity of the law which prohibited, except during the prescribed election period, the making of speeches, announcements or commentaries for or against the election of any party or candidate for public office. JUSTIFICATION: the inordinate preoccupation of the people with politics tended toward the neglect of the other serious needs of the nation and the pollution of its suffrages.
Iglesia ni Cristo vs CA	The Board of Review for Motion Pictures and Television (BRMPT) has the authority to review the petitioner's television program. However, the Board acted with grave abuse of discretion when it gave an “X-rating” to the TV program on the ground of “attacks against another religion.” Such a classification can be justified only if there is a showing that the tv program would create a clear and present danger of an evil which the State ought to prevent.
Primicias vs Fugosos	The respondent mayor could only reasonably regulate, not absolutely prohibit, the use of public places for the purpose indicated.
National Press Club vs COMELEC	the Supreme Court upheld the validity of Sec. 11(b), RA 6646, which prohibited any person making use of the media to sell or to give free of charge print space or air time for campaign or other political purposes except to the COMELEC. This was held to be within the power of the COMELEC to supervise the enjoyment or utilization of franchises for the operation of media of communication and information, for the purpose of ensuring equal opportunity, time and space, and the “right to reply,” as well as uniform and reasonable rates of charges for the use of such media facilities.
Osmeňa vs COMELEC	SC reaffirmed validity of RA 6646 as a legitimate exercise of police power. The regulation is unrelated to the suppression of speech, as any restriction on freedom of expression occasioned thereby is only incidental and no more than is necessary to achieve the purpose of promoting equality. NOTE: This is not inconsistent with the ruling in PPI vs COMELEC, because in the latter, SC simply said that COMELEC cannot procure print space without paying just compensation.
Adiong vs COMELEC	COMELEC's resolution prohibiting the posting of decals, and stickers in mobile units like cars and other moving vehicles was declared unconstitutional for infringmenet of freedom of expression. Besides, the constitutional objective of giving the rich and poor candidates' equal opportunity to inform the electorate is not violated by the posting of decals and stickers on cars and other vehicles. “Overbreadth doctrine” = prohibits the government from achieving its purpose by means that weep unnecessarily broadly, reaching constitutionally protected as well as unprotected activity; the government has gone too far; its legitimate interest can be satisfied without reaching so broadly into the area of protected freedom.
Gonzales vs katigbak	petitioner questioned the classification of the movie as “for adults only.” the petition was dismissed because the Board did not commit grave abuse of discretion.

 

 

Freedom From Subsequent Punishment

 

Section 18(1), Art. III. No person shall be detained solely by reason of his political beliefs and aspirations.

 

·         Without this assurance, the individual would hesitate to speak for fear that he might be held to account for his speech, or that he might be provoking the vengeance of the officials he may have criticized.

 

·         Not absolute; subject to police power and may be regulated (freedom of expression does not cover ideas offensive to public order)

 

Right of students to free speech in school premises not absolute

 

General Rule: a student shall not be expelled or suspended solely on the basis of articles he has written

 

Exception: when the article materially disrupts class work or involves substantial disorder or invasion of rights of others, the school has the right to discipline its students (in such a case, it may expel or suspend the student)

 

Tests of valid governmental interference

(criteria in determining the liability of the individual for ideas expressed by him) :

 

1.     Clear and present danger rule

2.     Dangerous tendency doctrine

3.     Balance of interest test

 

1.  Clear and Present Danger Rule – when words are used in such circumstance and of such nature as to create a clear and present danger that will bring about the substantive evil that the State has a right to prevent. (As formulated by Justice Holmes in Schenck v. United States)

 

Clear – causal connection with the danger of the substantive evil arising from the utterance

 

Present – time element; imminent and immediate danger (the danger must not only be probable but also inevitable).  (Gonzales v. Comelec)

 

·         In ABS-CBN v. Comelec, the Comelec banned “exit polls” in the exercise of its authority to regulate the holders of media franchises during the lection period.  It contends that “an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees....  However, the Court said that exit polls constitute an essential part of the freedoms of speech and of the press.  Hence, the Comelec cannot ban totally in the guise of of promoting clean, honest, orderly and credible elections.  The ban does not satisfy the clear and present danger rule because the evils envisioned are merely speculative.

 

Terminiello vs City of Chicago	·         (speech inside an auditorium with 800 persons) ·         speech is often provocative and challenging. hence, “fighting words” are not sufficient to convict a person absent a clear and present danger of a serious substantive evil
Primicias vs Fugosos	The respondent mayor could only reasonably regulate, not absolutely prohibit, the use of public places for the purpose indicated. ·         the condition of Manila at that  time did not justify the mayor's fears. there was no clear and present danger. ·         decided in 1947
Navarro vs Villegas	(compare with Primicias case) SC sustained respondent mayor's act of refusing to issue a permit enabling students to hold a public rally. Mayor feared the rally would result to public disorder. - decided in 1970
Reyes vs Bagatsing	the denial of a permit to hold a public rally was invalid as there was no showing of the probability of a clear and present danger of an evil that might arise as a result of the meeting. The burden of proving such eventually rests on the Mayor.

 

2.  Dangerous Tendency Doctrine – if the words uttered create a dangerous tendency of an evil which the State has the right to prevent.(Cabansag v. Fernandez)

 

·         Justice Holmes, critique of this doctrine: Every idea is an incitement. If believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth.

 

Bayan vs Executive Secretary Ermita	(a)   the Calibrated Pre-emptive Response Policy is null and void. Respondents are enjoined from using it and to strictly observe the requirements of maximum tolerance.
Cabansag vs Fernandez	It is not necessary that some definite or immediate acts of force or violence be advocated. It is sufficient that such acts be advocated in general terms. A mere tendency toward the evil was enough.
People vs Perez	Accused declared: “The Filipinos like myself must use bolos for cutting off (Governor-General) Wood's head for having recommended a bad thing for the Filipinos, for he has killed our independence.” He was sentenced to jail.

 

3.  Balance of Interest Test – when particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the circumstances presented. (American Communications Association v. Douds)

 

 

CLEAR AND PRESENT DANGER RULE	DANGEROUS TENDENCY RULE	BALANCE OF INTEREST RULE
liberty is preferred	Authority is preferred	the issue is resolved in the light of the peculiar circumstances obtaining in each particular case

 

 

·         In Mutuc v. Comelec, the preferred freedom of expression calls all the more the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage.

 

When faced with border line situations where freedom (of expression) to speak & freedom to know (to information) are invoked against (vs.) maintaining free and clean elections- the police, local officials and COMELEC should lean in favor of freedom.

 

For in the ultimate analysis, the freedom of the citizen and the State’s power to regulate are NOT ANTAGONISTIC.

 

There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

 

We examine the limits of regulation. J. Feliciano shows that regulation of election campaign activity may not pass the test of validity if:

·         It is too general in its terms

·         Not limited in time and scope in its application

·         It if restricts one’s expression of belief in a candidate or one’s opinion of his or her qualifications,

·         If it cuts off the flow of media reporting

·         If the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

 

The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed in his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else.

 

·         The general rule for a speech to be considered libelous or defamatory is:

                               

Libel = falsity + actual malice (uttered in full knowledge of its falsity or with reckless disregard) 

 

Exemption: When the subject of the supposed libelous or defamatory material is a public officer. Defamatory words may be uttered against them and not be considered libelous. The reason is that 1) they asked for it (“they voluntarily thrust themselves into the public eye and therefore should not be thin-skinned”); 2) it’s a matter of public interest; and 3) public figures have the opportunity and resources to rebut whatever is said against them. (Policarpio vs Manila Times); ( New York Times vs Sullivan)

 

·         In New York Times v. Sullivan, The New York Times is protected under the freedom of speech in publishing paid advertisement, no matter if it contained erroneous claims and facts. Said publication was not “commercial” in the sense that it communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought a financial support on behalf of a movement. That the Times was paid for publishing the advertisement is as immaterial as the fact that newspapers and books are sold.

 

Newspapers do not forfeit the protection they enjoy under speech freedom just because they publish paid advertisements. Otherwise, newspapers will be discouraged from carrying “editorial advertisements” and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities.

 

On errors: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this truer than that of the press.” Erroneous statement is inevitable in free debate.

 

Moreover, criticism of official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. Presence of clear and present danger of substantive evil must be proved. Actual Malice needs to be proved if a public official wants to recover damages for a defamatory falsehood relating to his official conduct. “Even a false statement may be deemed to make a valuable contribution to public debate since it brings about the clearer perception and livelier impression of truth, produced by its collision with error.”

 

·         In Gonzales v. Kalaw-Katigbak, Kapit sa Patalim was classified as “For Adults Only” by the MTRCB and was suggested to have certain portions cut/ deleted.

 

Held: MTRCB do not have the power to exercise prior restraint.  The power of the MTRCB is limited to the classification of films.

 

The test to determine whether a motion picture exceeds the bounds of permissible exercise of free speech and, therefore should be censored, is the clear and present  danger test.

 

Assembly and Petition

 

·         The right to assemble is not subject to prior restraint and may not be conditioned upon the prior issuance of a permit or authorization from the government authorities.  However, the right must be exercised in such a way that it will not prejudice the public welfare.  (De la Cruz v. Court of Appeals)

 

·         If assembly is to be held at a public place, permit for the use of such place, and not for the assembly itself, may be validly required.  Power of local officials is merely for regulation and not for prohibition. (Primicias v. Fugoso)

 

·         Permit for public assembly is not necessary if meeting is to be held in:  a private place; the campus of a government-owned or operated educational institution; and freedom park.  (B.P. Blg. 880 - “The Public Assembly Act of 1985')

 

·         In JBL Reyes v. Bagatsing, retired J. JBL Reyes sought a permit from the City of Manila to hold a march and rally on Oct 26, 1983 2-5pm from Luneta to gates of US Embassy, and was denied by the Mayor due to Vienna Convention Ordinance and fear of subversives may infiltrate the ranks of the demonstrators.

 

Held: no justifiable ground to deny permit because Bill of Rights will prevail over Vienna Ordinance should conflict exist (none proven because 500m not measured from gate to US Embassy proper) and fear of serious injury cannot alone justify suppression of free speech and assembly- only clear and present danger of substantive evil.

 

Notes:  the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly…

 

Tanada vs Bagatsing	SC sustained the petitioner's motion compelling the mayor of Manila to issue a permit to hold a rally, but changed the meeting place to Ugarte Field, a private park
Malabanan vs Ramento	(several students were suspended for 1 year for conducting demonstration in the premises of a university outside the area permitted by the school authorities) SC emphasized that the students did not shed their constitutional rights to free speech at the schoolhouse gate, and permitted the students to re-enroll and finish their studies.
Villar vs TIP	(several students were barred from re-enrollment for participating in demonstrations) while the Court upheld the academic freedom of institutions of higher learning, which includes the right to set academic standards to determine under what circumstances failing grades suffice for expulsion of students, it was held that this right cannot be utilized to discriminate against those who exercise their constitutional rights to peaceful assembly.
Non vs Dames	SC abandons its ruling in Alcuaz vs PSBA (that enrolment of a student is a semester-to-semester contract and the school may not be compelled to renew the contract) upholding the primacy of freedom of expression, because the students do not shed theur constitutionally protected rights at the school gate.
PBM Employees Assoc vs PBM	right to free assembly and petition prevails over economic rights.

 

 

Tests of a lawful assembly

 

(1)   Purpose Test

 

·         ideally, the test should be the purpose for which the assembly is held, regardless of the auspices under which it is organized

 

(2)   Auspices Test

 

·         Evengelista vs Earnshaw: the mayor of Manila prohibited the members of the Communist Party from holding any kind of meeting, revoking all permits previously granted by him on the ground that  the party had been found (by the fiscal's office) to be an illegal association.

 

·         In People v. Bustos, Bustos and several people sent complaint letters via counsel against Justice of Peace Roman Punsalan, who charged them with libel.

 

Held: Bustos and the others were acquitted,

 

Ratio: the guarantees of free speech and a free press include the right to criticize judicial conduct. And these people did so in proper channels without undue publicity, believing they were right.

 

 

Right of Association

 

Section 8, Art. III. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

 

The Right of Association is deemed embraced in freedom of expression because the organization can be used as a vehicle for the expression of views that have a bearing on public welfare.

 

SSS Employees Assoc vs CA	right to organize does not carry with it right to strike
Victoriano vs Elizalde Rope Workers' Union
Occena vs COMELEC	right of association was not violated where political parties were prohibited from participating in the barangay elections to insure the non-partisanship of the candidates.
In re Edillon	Bar integration does not compel the lawyer to associate with anyone. Integration does not make a lawyer a member of any group of which he is not already a member.

 

 

T.  OBSCENITY CASES

 

US vs Kottinger	SC acquitted accused who was charged of having offered for sale pictures of half-clad members of non-Christian tribes, holding that he had only presented them in their native attire
People vs Go Pin	Accused was convicted for exhibiting nude paintings and pictures, notwithstanding his claim that he had done so in the interest of art. SC, noting that he has charged admission fees to the exhibition, held that his purpose was commercial, not merely artistic.
Pita vs CA	SC declared that the determination of what is obscene is a judicial function.
Miller vs California	Test of Obscenity: ·         whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest ·         whether the work depicts, in a patently offensive way, sexual conduct specifically defined by the applicable law ·         whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value   Justice Douglas, dissent: I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. Obscenity is a hodgepodge.
- The Courts should not apply a national standard but the standard of the community in which the material is being tested.

 

·         In Reno v. ACLU, Communications Decency Act seek to protect minors from obscenity on the internet.

 

·         Held: overbroad, vague, unconstitutional.

 

·         Notes:  Sexual expression which is indecent but not obscene is protected by the First Amendment.

 

The internet is not an “invasive” medium because it requires a series of affirmative steps more deliberate and directed than merely turning a dial (tv or radio).

 

There is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms.

 

The Community Standard as applied to the internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.

 

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

 

The CDA is punitive, a criminal statute. The CDA is a content- based blanket restriction on speech, and as such, cannot be properly analyzed as a form of time, place and manner regulation.

 

·         The CDA was replaced with Child Online Protection Act, 1. The scope had been limited to material displayed only on the world wide web.  Chat and email were not included. The classification of content was limited as “harmful to minors” using the Miller V California Test. So, it was upheld by the Supreme Court.

 

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

 

The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional.

 

- Criticism of Official Conduct
Lagunzad vs Sotto Vda. de Gonzales	the Court granted the petition to restrain the public exhibition of the movie “Moises Padilla Story,” because it contained fictionalized embellishments. Being a public figure does not destroy one's right to privacy.
Ayer Productions vs Judge Capulong	the tribunal upheld the primacy of freedom of expression over Enrile's “right to privacy,” because Enrile was a public figure and a public figure's right to privacy is narrower than that of an ordinary citizen. Besides, the movie “Four Days of Revolution (sabi ni Cruz)” / “A Dangerous Life (sabi ni Nachura)” / “The Four Day Revolution (sabi sa case)”  would not be historically faithful without including therein the participation of Enrile in the EDSA revolution.
US vs Bustos	SC compared criticism of official conduct to a “scalpel that relieves the abscesses of officialdom”
People vs Alarcon	newspaper publications tending  to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding constitutes criminal contempt which is summarily punishable by the courts.
In re Jurado	a publication that tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and is punishable by contempt. It is not necessary that publication actually obstructs the administration of justice, it is enough that it tends to do so.
In re Sotto	a senator was punished for contempt for having attacked a decision of SC which he called incompetent and narrow-minded, and announcing that he would file a bill for its reorganization
In re Tulfo	Tulfo's “Sangkatutak na Bobo” column was held contumacious. Freedom of the press is subordinate to the decision, authority and integrity of the judiciary and the proper administration of justice.
In re Laureta	a lawyer was held in contempt and suspended from the practice of law for wrting individual letters to members of the SC division that decided a case against his client, arrogantly questioning their decision
Zaldivar vs Sandiganbayan	a member of the Bar who imputed charges of improper influence, corruption and other misdeeds to members of the Supreme Court was suspended from the practice of law as “neither the right of free speech nor  the right to engage in political activities can be so construed or extended as to permit any such liberties to a member of the bar.”