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4.

Wire Tapping

Republic Act No. 4200

I. UNLAWFUL ACTS

A. Any person who, without authority from all the parties to the private communication
or spoken word, does any of the following acts: [Sec. 1, par. 1]
1. to tap any wire or cable; or
2. to secretly overhear or intercept such communication or spoken word by using
any other device or arrangment; or
3. to record such private communication or spoken word by using a device
commonly known as dictaphone or dictagraph or detectaphone or walkie-talkie or tape
recorder, or however otherwise described.

B. Any person, whether participant or not in the above penalized acts, who: [Sec. 1, par.
2]

1. knowingly posseses any tape record, wire, record, disc record or any other
such record, or copies thereof, of any communication or spoken word secured either
before or after the effective date of this Act in the manner prohibited by law; or
2. to replay the same for any other person or persons; or
3. to communicate the contents thereof, either verbally or in writing; or
4. to furnish transcriptions thereof, whether complete or partial, to any other
person.

C. Any person who shall aid, permit, or cause to be done any of the acts declared to be
unlawful: [Sec. 2]

D. Any person who shall violate the provisions of Sec. B or the exempted acts below or
of an order issued thereunder, or aids, permits, or causes such violation: [Sec. 2]

II. EXEMPTED ACTS

A. Use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned below: [Secs. 1, par. 2]

B. Any peace officer, who is authorized by the written order of the Court (RTC within
whose territorial jurisdiction the acts for which auhtority is applied for are to be executed), to
execute any of the acts declared to be unlawful in cases involving the crimes of: [Sec. 3, par. 1]

1. treason
2. espionage
3. provoking war and disloyalty in case of war
4. piracy
5. mutiny in the high seas
6. rebellion
7. conspiracy and proposal to commit rebellion
8. inciting rebellion
9. sedition
10. conspiracy to commit sedition
11. inciting to sedition
12. kidnapping as defined by the RPC
13. violations of CA 616, punishing espionage and
other offenses against national security

The WRITTEN ORDER shall only be issued or granted upon written application with the
examination under oath or affirmation of the applicant and the witnesses he may produce and
must show:

a) that there are reasonable grounds to believe that any of the crimes enumerated herein
has been committed or is being committed provided, that in cases involving the offenses of
rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy
to commit sedition, such authority shall be granted only upon prior proof that a rebellion or acts
of sedition, as the case may be, have actually been or are being committed;
b) that there are reasonable grounds to believe that evidence may be obtained essential to
the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes;
c) that there are no other means readily available for obtaining such evidence.

Contents: 1. the identity of the person or persons whose communications, conversations,


discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of
telegraphic or telephonic communications, the telegraph line and the telephone number involved
and its location;
2. the identity of the peace officer authorized to overhear, intercept, or record the
communications, conversations, discussions, or spoken words;
3. the offense or offenses sought to be committed or prevented; and
4. the period of the authorization.

Effectivity: The authorization shall be effective for the period specified in the order which shall
not exceed 60 days from the date of issuance of the order, unless extended or renewed by the
court upon being satisfied that such extension or renewal is in the public interest.

Procedure: All recordings made under court authorization within 48 hours after the expiration of
the period fixed in the order:

1. shall be deposited with the court in a sealed envelope or sealed package;


2. shall be accompanied by an affidavit of the peace officer granted such authority
stating the number of recordings made, the dates and times covered by each recording, the
number of tapes, discs, or records included in the deposit and certifying that no duplicates or
copies are included in the envelope or package deposited with the court;
3. shall not be opened, or the recordings replayed, or used in evidence or their contents
revealed, except upon order of the court, which shall not be granted except upon motion, with due
notice and opportunity to be heard to the person or persons whose conversations or
communications have been recorded.

III. PENALTY

Any person who violates the provisions of this Act, shall, upon conviction, be punished
by:

A. imprisonment for not less than 6 months or more than 6 years; and
B. with the accessory penalty of perpetual absolute disqualification from public office if
the offender be a public official at the time of the commission of the offense; and
C. if the offender is an alien, he shall be subject to deportation proceedings.

IV. ADMISSIBILITY

Any communication or spoken word, or the existence contents, substance, purport, effect
or meaning of the same or any part thereof, or any information therein contained, obtained or
secured by any person in violation of this Act shall not be admissible in evidence in any judicial,
quasi-judicial, or administrative hearing or investigation. Shirley Alinea Notes.

Gaanan v. IAC, 145 SCRA 112 (1986)

F: Complainant Atty. Pintor and Montebon offered to withdraw the complaint for direct assault they
filed against Laconico after demanding P8,000 from him. This demand was heard by Atty. Gaanan
through a telephone extension as requested by Laconico so as to personally hear the proposed conditions
for the settlement. Atty. Pintor was subsequently arrested in an entrapment operation upon receipt of the
money. Since Atty. Gaanan listened to the telephone conversation without complainant's consent,
complainant charged Gaanan and Laconico with violation of the Anti- Wiretapping Act (RA 4200).

ISSUE: W/N an extension telephone is among the prohibited devices in Sec. 1 of RA 4200 such
that iuts use to overhear a private conversation would constitute an unlawful interception of
communication between 2 parties using a telephone line.

HELD: NO
An extension tel. cannot be placed in the same category as a dictaphone, dictagraph, or
other devices enumerated in Sec. 1 of the law as the use thereof cannot be considered as "tapping"
the wire or cable of a telephone line. This section refers to instruments whose installation or
presence cannot be presumed by the party or parties being overheard because, by their very
nature, they are not of common usage and their purpose is precisely for tapping, intercepting, or
recording a tel. conversation. The tel. extension in this case was not installed for that purpose. It
just happened to be there for ordinary office use.
Furthermore, it is a general rule that penal statutes must be construed strictly in favor of
the accused. Thus in the case of doubt as in this case, on WON an extension tel. is included in
the phrase "device or arrangement" the penal statute must be construed as not including an
extension tel.
A perusal of the Senate Congressional Record shows that our lawmakers intended to
discourage, through punishment, persons suchj as government authorities or representatives of
organized groups from installing devices in order to gather evidence for use in court or to
intimidate, blackmail or gain some unwarranted advantage over the tel. users. Consequently, the
mere act of listening , in order to be punishable must stricly be with the use of the enumerated
devices in RA 4200 or others of similar nature. Suzette.

IV. FREEDOM OF EXPRESSION

Art. III, Sec. 4. 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 grievance.
Id., Sec. 18. (1) No person shall be detained solely by reason of his political beliefs
and aspirations.
xxx

A. Philosophical Basis of Guarantees

Free Market Place of Ideas

1. For the discovery of political truth

When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the ultimate
good desired is better reached by 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 the truth is the only ground
upon which their wishes safely can be carried out. (Justice Holmes, Abrams v. United States,
250 U.S. 616. (1919)

The theory behind freedom of expression is the principle that ours is a democratic
society, and so the only way to rule ultimately is by, means of public opinion, which is possible
only when everyone can speak their minds out and compete in the free market place of ideas.

2. For self government

United States v. Bustos, 37 P 731 (1918)

Burgos v. Chief of Staff, 133 SCRA 800 (1984), supra

HELD: As a consequence of the search and seizure, the premises of the "Metropolitan Mail" and
"We Forum" were padlocked and sealed, with the further result that the printing and publication
of said newspapers were discontinued. Such closure is in the nature of previous restraint or
censorship abhorrent to the freedom of the press guaranteed under the fundamental law and
constitutes a virtual denial of petitioner's freedom to express themselves in print. This state of
being is patenly anathematic to a democratic framework where a free, alert and even militant
press is essential for the political enlightenment and growth of the citizenry. VV.

Corro v. Lising, 137 SCRA 341 (1985), supra

This case quoted the same ratio in Burgos v. Chief of Staff.

New York Times v. Sullivan, 380 US 51 (1964)

3. For individual protection

Whitney v. California, 274 US 357, 47 S. Ct. 641, 71 L. Ed. 1045 (Brandeis, J., concurring)
B. Prior Restraints

Thus any system of prior restraints of expression comes to the Court bearing a heavy
presumption against its constitutionality, giving the government a heavy burden to show
justification for the imposition of such restraint. (New York v. United States (1971); also in New
York Times v. Pentagon and Bantam Books v. Publication of Pentagon Papers).

Sanidad v. COMELEC, 181 SCRA 529 (1990)

Subsequent Punishment

And even subsequent punishment is tempered by the greater interest of promoting free
public opinion. The most significant expression is the law on libel.

We consider this case against the background of a profound national commitment to


debate on public issues being uninhibited, robust and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
The falsity of some of the factual statements and alleged defamations do not qualify the role.
And just as factual error afforded no warrant for repressing speech that would otherwise be free,
the same is true of injury to official reputation. (New York Times v. Sullivan, 380 U.S. 51 (1964)

The interest of society and good government demands a full discussion of public affairs.
Whether the law is wisely or badly enforced is a fit subject for proper comment. Public policy,
welfare of society, and the orderly administration of government have demanded protection for
public opinion. The inevitable and incontestable result has been the development and adoption of
the doctrine of privilege. [Justice Malcom, United States v. Bustos, 731 (1918).]

While, uncer the Revised Penal Code, any defamatory statement is presumed to be
malicious (malice-in-law), when the defense proves that the communication is privileged, such a
presumption of malice does not arise because of the greater public interest involved.

If the communication is absolutely privileged (as in parliamentary freedom of speech),


the prosecution cannot even prove malice-in-fact.

If the communication is only qualifiedly privileged (Art. 354 enumerates the 2 instances:
fair and true reporting of an official proceeding; legal moral or social duty), the burden is shifted
on the prosecution to prove malice-in-fact, which the defense can overcome by proving the truth
of the defamatory statement (which in the case of public officials may or may not constitute a
crime, so long as related to the conduct of his office) and good motive.

C. Content-Based Restrictions

1. Test of validity of content-based restrictions

The U.S. Supreme Court and, by haphazard imitation, the Philippine Supreme Court,
have evolved certain tests to regulate the contents of speech.
Dangerous Tendency Test: When the legislative body has determined generally, in the
exercise of its discretion, that utterances of a certain kind involve such danger of a substantive
evil that they may be punished, the question whether any specific utterance coming within the
prohibited class is likely, in and itself, to bring the substantive evils, is not open to consideration.
In such cases, the general provision of the statute may be constitutionally applied to the specific
utterance if its natural and probable effect was to bring about the substantive evil which the
legislative body might prohibit. [Gitlow v. New York, 268 US 652 (1925).]

Example: Art. 142. Inciting to sedition. When the legislature has decided that one who
advocates a certain conduct is guilty of a crime, the court cannot intrude. As it evolved, this test
was supposed to apply when there is a statute, in contrast to the clear and present danger rule
which applies when the speech is not prohibited by statute.

Clear and Present Danger Test: The question in every case is whether the words used
are used in such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress has a right to prevent. It is a
question of proximity and degree. [Schenck v. United States, 249 US 47 (1919).]

The emphasis of the test is the nature of the circumstances under which it is uttered. The
speech itself may not be dangerous. As Holmes said: "Many things that might be said in time of
peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight." Or saying "Fire" in a crowded movie house.

Grave-but-improbable danger: Whether the gravity of the evil, discounted by its


improbability, justifies such an invasion of free speech as is necessary to avoid the danger.
[Dennis v. United States, 341 US 494 (1951), quoting Judge Learned Hand.]

This test was meant to supplant the clear and present danger. They both emphasize the
circumstances of the speech, but this latter test consider the weighing of values.

Direct Incitement Test: The consitutional guarantees of free speech and press do not
permit a State to forbid or proscribe advocacy of the use of force or of law violation, except
where such advocacy or peech is directed to inciting or producing imminent lawless action, and is
likely to incite or produce such action. [Brandenburg v. Ohio, 395 U.S. 444 (1969), cited in
Salonga v. Cruz Pano, 134 SCRA 438 (1985).]

The test emphasizes the very words uttered: (a) What words did he utter? (b) What is
the likely result of such utterance? It criticizes the clear and present danger test for being top
dependent on the circumstances. Speaker may, when tested show no incitement but you know the
speaker is inciting to sedition.

Balancing of Interest Test: The court must undertake the delicate and difficult task of
weighing the circumstances and appraising the substantiality of the reasons advanced in support
of the regulation of the free enjoyment of rights. [American Communication Ass'n v. Douds, 339
US 383 cited in Gonzales v. COMELEC, 27 SCRA 835 (1969A)]

The test applied when two legitimate values not involving national secuirty crimes
compete. Involves an appoint of the competing interest. (Gonzales v. Comelec)

In Aver v. Capulong and Enrile, for instance, it is a question of balancing the freedom of
expression of the producer and the right to privacy of Enrile.
(not in VV's revised outline)
Balancing of Factors Test: The truth is theat the clear-and-present danger test is over-
simplified judgement unless it takes into account also a number of other factors: (1) the relative
seriousness of the danger in comparison with the value of the occasion for speech or political
activity, (2) the availability of more moderate controls than those the State has imposed, and
perhaps (3) the specific intent with which the speech is launched. (Freund, quoted in Dennis v.
United States in the concurring opinion of Justice Frankfurter).

2. Applications of tests in various contexts

a. Freedom of expression and national security

Espeulas v. People, 90 P 524 (1951)

Babst v. National Intelligence Board 132 SCRA 316 (1984)

F: Petitioners are journalists and columnists. On different dates in July 1980, they were summoned
by military authorities for interrogation regarding their work, feelings, sentiments, beliefs, associations and
even private lives. In addition, one of them was charged with libel by a General who sought to recover P10
million in damages. They brought an action for prohibition to stop the NIB from questioning them and
from filing libel suits on matters that had been the subject of inquiry by the NIB.

HELD: The petition has become moot and academic. Be that as it may, it is not idle to note that,
while ordinarily, an invitation to attend a hearing and answer some questions is not illegal or
constitutionally objectionable, under certain circumstances, however, such an invitation can
easily assume a different appearance as when it comes from a powerful group composed
predominantly of ranking military officers and the designate interrogation site is a military camp.

Teehankee, J., dissenting: The SC should rule squarely or at least lay down the authoritative and
controlling doctrines on the vital issues of upholding the freedoms of speech and of the press.
VV.

b. Freedom of expression and criticism of official conduct: The Test of


"Actual Malice"

Read Revised Penal Code, Articles 353-354 and 361-362

Art. 353. Definition of libel.-- A libel is a public and malicious imputation of a


crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishnonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead. (Revised Penal Code.)

Art. 354. Requirement of publicity.-- Every defamatory imputation 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 cases:
1. A private communication made by any person to another in the performance of
any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative or other official proceedings 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. (Ibid.)

Art. 361. Proof of the truth.-- In every criminal prosecution for libel, the truth may
be given in evidence to the court and if appears that the matter charged as libelous is true,
and, moreover, that it was published with good motives and for justifiable ends, the
defendants may be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime
shall not be admitted, unless the imputation shall have been made against Government
employees with respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he
shall be acquitted.

Art. 362. Libelous remarks.-- Libelous remarks or comments connected with the
matter privileged under the provisions of article 354, if made with malice, shall not exempt
the author thereof nor the editor or managing editor of a newspaper from criminal liability.

Compare Act No. 2928, March 26, 1920 and Com. Act No. 382, Sept. 6, 1938

Act No. 2928

Com. Act 382, Sept. 5, 1938

COMMONWEALTH ACT NO. 382

AN ACT TO ADOPT THE ORIGINAL AUTHENTIC FORM OF THE PHILIPPINE NATIONAL


ANTHEM AND TO APPROPRIATE FUNDS FOR ITS PRINTING AND FREE DISTRIBUTION.

To preserve the musical adaptation and motive in the original authentic composition of the
Philippine National Anthem as set by its author, Julian Felipe, and to attain uniform performance thereof in
the Philippines:

Be it enacted by the National Assembly of the Philippines:

Sec. 1. The musical arrangement and composition of the Philippine National Anthem as set by its
author, Julian Felipe, is adopted.
Sec. 2. There is appropriated, out of the unappropriated funds in the National Treasury, the sum of
five hundred pesos for the preparation, printing and free distribution of copies of the Philippine National
Anthem as adjusted to its original authentic outline.
Sec. 3. The National Library of the Philippines is entrusted with the accomplishment hereof.
Sec. 4. This Act shall take effect on its approval.
Approved, September 5, 1938.

Freedom of expression and libel


Freedom of speech versus right to reputation. Libel is the most common form of
subsequent punishment. Although one cannot be prevented from saying something before he
actually says it, one can be held liable for what one has said if it causes damage to the rights of
others.

Soliven v. Makasiar; Beltran v. Makasiar, 167 SCRA 393 (1988)

F: The President of the Philippines filed a complaint for libel against the petitioners, who were the
publisher and columnist of the Philippine Star, based on the following statement in Beltran's column of Oct.
12, 1987 totle "The Nervous Officials of the Aquino Administration": "If you recall, during the August 29
coup attempt, the President hid under her bed while the firing was going on - perhaps the first Commander-
in-Chief to do so." Beltran did not submit a counter affidavit and instead, moved to dismiss the complaint.
The fiscal denied his motion. Thus, this petition for certiorari.

HELD: xxx
(3) As regards the contention of petitioner Beltran that he could not be held liable for
libel bec. of the privileged character of the publication, the Court reiterates that it is not a trier of
facts and that such a defense is best left to the trial court to appreciate after receiving the evidence
of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on the press freedom, the Court finds no basis at this stage to rule on
the point. VV.

Manuel v. Cruz-Pano, 172 SCRA 225 (1989)

Libel suits based on official criticisms should be dismissed outright unless made in bad faith

F: Petitioner wrote the Chairman of the Anti-Smuggling Action Center denouncing abuses allegedly
committed by ASAC agents against petitioner's clients. Petitioner said the agents subjected Ng Woo Hay to
indignities and took her necklace and bracelet and her son's wristwatch plus HK$ 70. But the agents were
exonerated so petitioner filed criminal charges of robbery. Petitioner found prosecutors unsympathetic so
he filed a civil action for damages against the agents. Later, the Bulletin Today published a news item
based on petitioner's letter to ASAC. This became the basis of an action for libel brought against petitioner
and his clients. Petitioner moved to quash the case but his motion was denied.

HELD: From the viewpoint of procedural and substantive law, the charge is defective. The letter
constitutes privileged communication. It was sent by petitioner in his capacity as lawyer in the
discharge of his legal duty to his clients. He could also invke his civic duty as a private individual
to expose anomalies in the public service. The complaint was addressed to the official who had
authority over them and could impose proper disciplinary sanctions. As an index of good faith,
the letter was sent privately, directly to the addressee without any funfare nor publicity. As for the
news report, it is difficult to believe that the petitioner, an ordinary citizen without known ties to
newspaper, could have by himself caused the publication. It does not appear either that the report
was paid for like an advertisement. At any rate, the news item is a true and fair report of a judicial
proceeding, made in good faith and without comments or remarks. VV.

Newsweek Inc. v. IAC 142 SCRA 171 (1986)

F: Petitioner was sued for libel in connection with the publication in the Feb. 23, 1981 issue of
Newsweek of the article "An Island of Fear." The plaintiffs, sugar planters of Bacolod, complained that the
article portrayed them as exploiters of sugar workers. Petitioner moved to dismiss the complaint on the
ground that the article was not libelous since it did not single any particular individual. The trial court
denied the motion and petitioner filed a petition for certiorari in the IAC which was dismissed. Thus, this
appeal to the SC.

HELD: Where the defamation is alleged to have been directed at a group or class, it is essential
that the statement must be so sweeping or all-embracing as to apply to every individual in that
group or class, or sufficiently specific so that each individual in the class or group can prove that
the defamatory statement specifically pointed to him, so that he can bring the action separately if
need be. The disputed portion which refers to plaintiff Sola never singled out Sola. The news
report merely stated that the victim had been arrested by members of a special police unit brought
into the area by Sola, the mayor. Hence, the report referring as it does to an official act is within
the realm of privileged and is protected by the constitutional guarantees of free speech and press.
VV.

Notes: Since the Newsweek artciles "Island of fear in the Visayas" did not specify any
individual, it cannot be libelous. An article must be sufficiently, specific or at least sweeping as
to apply to all members of a group, in order to be deemed libelous.

Lopez v. Court of Appeals, 34 SCRA 116 (1970)

The pictures of a former mayor was inadvertently published and mistaken for another
man who was a sanitary inspector and fooled the authorities about the Babuyan Islands, claiming
of murders there, so they could go and he could be rescued. An erratum was published by the
This Week magazine. The SC, quoting Quisumbing v. Lopez, however, found for plaintiff, but
with reduced damages, since the error in in this case could have been checked consideringing that
this was a weekly magazine and not a daily.

Quisumbing v. Fernando, 96 Phil 510 (1955)

Newspapers should be given leeway and tolerance to enable them to courageously and
effectively perform their important role in our democracy. In the preparation of stories, press
reporters and editors usually have to race to their deadlines; and consistently with good faith and
reasonable care, they should not be held to account, to a point of suppression, for honest mistakes
or imperfection in the choice of words.
.

Mercado v. CFI of Rizal 116 SCRA 93 (1982)

F: Petitioner was accused of libel on the basis of a telegram which he sent to the Secretary of Public
Works requesting investigation of Mrs. Virginia Mercado of the Public Service Commission "as we have
reason to believe that she has enriched herself thru corrupt practices xxx." He filed a motion to dismiss on
the ground that his communication was privileged, but his motion was denied. He filed another motion
which was also denied. Thus, this petition for certiorari, mandamus and prohibition in the SC.

HELD: US v. Bustos is a landmark decision antedating by forty years a similar decision of the
US Supreme Court to the effect that a libel prosecution must survive the test of whether or not the
offending publication is within the guarantees of free speech and free press. However, Justice
Malcolm in US v. Bustos was careful to point out that qualified privilege and this is one instance
may be "lost by proof of malice." What casts doubt on the good faith of petitioner is his conduct,
vis-à-vis private respondent. The tenacity with which petitioner had pursued a course of conduct
on its face would seem to indicate that a doubt could reasonably be entertained as the bona fides
of petitioner. The prosecution should be given a chance to prove malice. VV.

(not in VV's revised outline)


Elizalde v. Gutierrez, 76 SCRA 448 (1977)

A publication of a dispatch coming from the Philippine News Agency by the


sensationalist newspaper Evening News about the Maggie dela Riva rape case involving
prominent individuals is not libelous. Courts must be careful not to unnecessarily prosecute
members of the press if it finds the prosecution to be baseless, they should immediately dismiss
the case and not allow the editor and publisher to be derailed from their work by being dragged
into trial.

c. Freedom of expression and the right to privacy

Lagunzad v. Gonzales, 92 SCRA 476 (1979)

F: Lagunzad filmed the Moises Padilla story based on a book written by Rodriguez. xxx Nelly
Amane who was a half-sister of Padilla objected to the movie on the ground that it contained a portrayal of
Padilla's private and family life, including scenes about his mother, Maria Soto vda. de Gonzales, and a
certain "Auring" as Padilla's girl friend. Subsequently, Nelly Amante, together w/ her sister and mother,
agreed to allow petitioner to "exploit, use and develope the life story of Moises Padilla for purposes of
producing the pictures," in consideration of P20,000. Petitioner paid P5,000 but as he failed to pay the
balance agreed upon, he was sued. Judgement was rendered against him by the trial court, w/c was
affirmed by the CA. Petitioner appealed to the SC contending that he was forced to enter into the
agreement only to avoid financial loss caused by delay in the showing of the movie and the relatives of
Padilla did not have a property right in the life of M. Padilla since Padilla was a public figure.

HELD: Petitioner's averment is not well taken. Being a public figure 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 fictional or novelized representation of a person, no matter
how a public figure he or she may be. In the case at bar, while it is true that petitioner exerted
efforts to present the true-to-life story of Moises Padilla, petitioner admits that he included a little
romance in the film bec. w/o it, it would be a drab story of torture and brutality.
Freedom of expression, indeed, occupies a preferred position in the hierarchy of civil
liberties. It is not, however, w/o limitations. In the particular circumstances presented and
considering the obligations assumed by petitioner under the agreement, the validity of such
agreement will have to be upheld particular bec. the limits of freedom of expression are reached
when expression touches upon matters of private concern. [In the agreement signed by him,
petitioner admitted that in the picture produced, he had "exploited the life story of Moises Padilla
for pecuniary gain, and other profit motives, and (had) encroached upon the privacy of Moises
Padilla's immediate family, and (had) in fact included, in the PICTURE's case, persons portraying
some of MOISES PADILLA's kin..."] VV.

Ayer Productions Pty. Ltd. v. Capulong April 29, 1988

F: Pivate respondent Juan Ponce Enrile filed an action in the RTC of Makati to enjoin the petitioners
from producing the movie "The Four Day Revolution," a documentary of the EDSA Revolution in 1986 on
the ground that it violated his right to privacy. Petitioners contended that the movie would not involve his
private life not that of his family. But the trial court issued a writ of preliminary injunction and ordered
petitioners to desist from making the movie making reference whatsoever to Ponce Enrile. This, this action
for certiorari.

HELD: Freedom of speech and expression includes freedom to produce motion pictures and to
exhibit them. What is involved is a prior restraint by the Judge upon the exercise of speech and of
expression by petitioners. Because of the preferred character of speech and of expression, a
weighty presumption of invalidity vitiates measures of prior restraint. The Judge should have
stayed his hand considering that the movie was yet uncompleted and therefore there was no "clear
and present danger." The subject matter of the movie does not relate to the private life of Ponce
Enrile. The intrusion is no more than necessary to keep the film a truthful historical account. He
is, after all, a public figure. The line of equilibrium in the specific context of the instant case
between 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 facts. There must be no showing of a reckless disregard of truth. VV.

Notes: Ayer sought to produce a movie on the 4-day revolution. Enrile, who had
previously been asked for the use of his character in the movie and had refused the offer, sued to
enjoin the filming because he did not want any mention of his and his family's name. The SC
lifted the injunction issued by the lower court on the ground that it amounted to prior restraint,
which is no better if imposed by the courts than if imposed by administrative bodies or by
ecclesiatical officials.

In Ayer, the reference to Enrile is unavoidable because his name is part of history and
this cannot be changed or altered; thus his name can be used so long as only his public life is
dwelled only. But in Lagunzad, although Moises Padilla was also a public figure, the movie
dealth with both the public and private lives of Moises Padilla.

d. Freedom of expression and administration of justice (contempt of


court)

In re Emiliano P. Jurado, AM NO. 90-5-2373, July 12, 1990

In re Ramon Tulfo, AM NO. 90-4-1545-0, April 17. 1990

Zaldivar v. Sandiganbayan, 170 SCRA 1 (1989)

Cabansag v. Fernandez, 102 Phil 152 (1957)

A contempt imposed by the court on the party who sent a letter to the Presidential Action
Committee complaining about the delay in the disposition of the agrarian case, was lifted by the
SC. It held that although such a letter should have been sent to the SC and not the PAC, it was
nevertheless a valid exercise of speech which did not significantly destroy, the orderly
administration of justice.

(not in VV's revised outline)


People v. Alarcon, 60 Phil 265 (1939)

A person can be held liable for making comments on a pending case (sub judice) which
have the tendency to impair or obstruct the orderly administration of justistice. But if the case is
not pending, such comment is a valid exercise of the freedom of expression.

e. Symbolic Expression-- The Flag-burning case

Texas v. Johnson, 491 US 397, 109 S. Ct. 2533 (1989)

Flag burning when done to express dissent is protected speech.

F: Respondent Johnson participated in a political demonstration where he burned an American flag


while protesters chanted. No one was physically injured or threatened with injury, although several
witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a
venerated object in violation of a Texas statute which (1) prohibited the desecration of, among other things,
a state or national flag, and (2) defined desecration as the physical mistreatment of such objects in a way
which the actor knows will seriously offend one or more persons likely to observe or discover the act. A
state court of appeals affirmed. The Court of Criminal Appeals of Texas reversed, holding that the
desecration statute as applied violated the defendant's right to freedom of speech under the Federal Consti-
tution's First Amendment, because the statute (1) was too broad for First Amendment purposes as it related
to breaches of the peace, and (2) was not adequately supported by the state's purported interest in
preserving a symbol of unity.

ISSUE: Whether the flag desecration statute is unconstitutional

HELD: YES. Decision Affirmed.


Johnson's conviction was inconsistent with the First Amendment under the particular
circumstances because (1) Johnson's conduct was sufficiently imbued with elements of
communication to implicate the First Amendment, given that this flag burning was the
culmination of a political demonstration and that the state conceded that the protester's conduct
was expressive; (2) the state's interest in preventing breaches of the peace was not implicated on
the record in this case, since (a) no disturbance of the peace actually occurred or threatened to
occur because of the flag burning, (b) it cannot be presumed that an audience which takes serious
offense at a particular expression is necessarily likely to disturb the peace, and (c) the flag
burning does not fall within the small class of "fighting words" that are likely to provoke the
average person to retaliation and thereby cause a breach of the peace; and (3) the state's asserted
interest in preserving the flag as a symbol of nationhood and national unity does not justify the
conviction, since (a) the attempted restriction on expression is content-based, and thus subject to
the most exacting scrutiny, given that the flag desecration statute is aimed not at protecting the
physical integrity of the flag in all circumstances, but only against impairments that would cause
serious offenses to others and is aimed at protecting onlookers from being offended by the ideas
expressed by the prohibited activity, and (b) although the state has a legitimate interest in
encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting
expressive conduct relating to it and by criminally punishing a person for burning the flag as a
means of political protest.

Rehnquist, White, O'Connor, JJ., Dissenting Opinion:

(1) The Texas statute is not invalid under the First Amendment as applied in this case,
because (a) the American Flag has come to be the visible symbol embodying our nation and is not
simply another idea or point of view competing for recognition in the marketplace of ideas, and
the public burning of the American flag in this case was no essential part of any exposition of
ideas and had a tendency to incite a breach of the peace; and (2) the statute is not
unconstitutionally vague or overbroad.

Stevens, J., Dissenting Opinion:

(1) Sanctioning the desecration of the flag will tarnish its value as a national symbol, a
tarnish which is not justified by the trivial burden on free expression that is occasioned by
requiring that alternative modes of expression be employed; (2) the flag-desecration statute does
not prescribe orthodox views or compel any conduct or expression of respect for any idea or
symbol; and (3) the defendant was prosecuted not for his criticism of governmemt policies, but
for the method he chose to express those views, and a prohibition against that method is
supported by a legitimate interest in preserving the quality of an important national asset.
Adapted.

Cf. Act No. 2938, March 26, 1920

Com. Act 382, Sept. 5, 1938

COMMONWEALTH ACT NO. 382

AN ACT TO ADOPT THE ORIGINAL AUTHENTIC FORM OF THE PHILIPPINE NATIONAL


ANTHEM AND TO APPROPRIATE FUNDS FOR ITS PRINTING AND FREE DISTRIBUTION.

To preserve the musical adaptation and motive in the original authentic composition of the
Philippine National Anthem as set by its author, Julian Felipe, and to attain uniform performance thereof in
the Philippines:

Be it enacted by the National Assembly of the Philippines:

Sec. 1. The musical arrangement and composition of the Philippine National Anthem as set by its
author, Julian Felipe, is adopted.
Sec. 2. There is appropriated, out of the unappropriated funds in the National Treasury, the sum of
five hundred pesos for the preparation, printing and free distribution of copies of the Philippine National
Anthem as adjusted to its original authentic outline.
Sec. 3. The National Library of the Philippines is entrusted with the accomplishment hereof.
Sec. 4. This Act shall take effect on its approval.
Approved, September 5, 1938.

Adm. Code of 1987, Bk I, Chapter 4, Sec. 12-13

f. Movies Censorship

While prior restraint is the general rule, censorship in the movies is tolerated because by
the nature of the medium, it has a greater impact on the audience and produces instant reaction for
the ideas it presents, unlike newspapers which are read by people separated by walls.
Gonzales v. Katigbak, 137 SCRA 356 (1985)

F: Petitioner was the producer of the movie Kapit sa Patalim which the Board of Review for Motion
Pictures and Televisions allowed on condition that certain deletions were made and that it was shown on
adults only. The petitioner brought an action, claiming violation of their freedom of expression.

HELD: Motion pictures are important both as a method for the communication of ideas and the
expression of the artistic impulse. The power of the Board is limited to the classification of films.
For freedom of expression is the rule and restrictions the exception. The power to impose prior
restraint is not to be presumed, rather the presumption is against its validity. Censorship is
allowable only under the clearest proof of a clear and present danger of a substantive evil to
public safety, public morals, public health or any other legitimate public interest. The Board
committed an abuse of discretion in subjecting petitioner to difficulty and travail before the
movie was classified as "For adults only" without deletion. However there is not enough votes to
consider the abuse of discretion grave as it explained that there were reasons for its action
because of the scenes showing women erotically dancing naked and kissing and caressing each
other like lesbians. VV.

Notes: The movie involved in this case was "Kapit sa Patalim" which the censors
wanted to cut in some part and to label "For Adults". The SC rules that movies are within the
constitutional protection of freedom of expression, so that censorship is presumed to be valid as
constituting prior restraint. The only case whe the Board of Censors can order a deletion is when
there is a clear and present danger of a substantive evil against national security or public morals
or other public interest. In all other cases, the Board can only classify.

But a different standard must be followed in television because of the pervasive and
intrusive influence of the medium on people who watch its programs without having to pay
anything.

On the issue of obscenity, the SC held that sex along is not necessarily obscenity, the test
being whether, using contemporary community standards, the dominant appeal us to the prurient
interest. (Miller v. California). Thus on this score, it found abuse of discretion of the part of the
Board for subjecting the producer to difficulty and for entertaining a narrow view of obscenity,
but it lacked the votes to rules that the abuse was grave.

Cruz, CONSTITUTIONAL LAW, 1991 ed.:

Tests of obscenity:
(1) Whether the average person, applying contemporary community standards, would
find that the work, taken as a whole, appeals to the prurient interest.
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable law.
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value. (Miller v. California, 37 L. Ed. 2d 419.)

g. Radio Broadcast
In Eastern Broadcasting Corp. v. Dans, 137 SCRA 647, the SC held that radio broadcast
also enjoys the protection of the freedom of expression. If closed down, the owners enjoy the
rights to due process according to the standards set in Ang Tibay v. CIR.

But radio deserves greater regulation than newspapers because it could invade the privacy
of everyone for no fee, and it is such that one is likely to listen to what is being said.

Eastern Broadcasting Corp. (DYRE) V. Dans, 137 SCRA 647 (1985)

F: The petitioners filed this action to compel respondent government officials to allow the reopening
of Radio Station DYRE after it had been closed for allegedly having been used to incite the people to
sedition. The petitioner contended that it was denied due process because no hearing was held and no proof
was submitted to establish a factual basis for the closure. However, before the Court could promulgate its
decision the petitioner filed a motion to withdraw its action on the ground that it had sold the radio station
to Manuel Pastrana and that the National Telecommunications Commission had expressed its willingness to
grant the requisite license.

HELD: The case has been moot and academic. However, for the guidance of the inferior courts
and administrative bodies, the following guidelines must be observed: 1) The cardinal primary
requirements in administrative proceedings as laid down in Ang Tibay v. CIR should be followed
before a broadcast station may be closed; 2) All forms of communication are entitled to the broad
protection of the freedom of expression clause. Necessarily, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and print
media. This limitation derives from the fact the broadcast media have a uniquely pervasive
presence in the lives of all Filipinos; 3) The government has a right to be protected against
broadcasts which incite listeners to violently overthrow it; and 4) Broadcast stations deserve the
special protection given to all forms of media by the due process and freedom of expression
clauses of the Constitution. VV.

Section 3. (1) The privacy of communication and correspondence shall be


inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceedings.

R.A. 4200 (Anti-Wiretapping Act)

1. The law does not distinguish between a party to the private communication or a third person.
Hence, both a party and a third person could be held liable under R.A. 4200 if they commit
any of the prohibited acts under R.A. 4200 (Ramirez v. Ca)

2. The use of a telephone extension to overhear a private conversation is not a violation of R.A.
4200 because it is not similar to any of the prohibited devices under the law. Also, a
telephone extension is not purposely installed for the purpose of secretly intercepting or
recording private communication. (Gaanan v. IAC, 145 SCRA 112)

Types of communication protected:

Letters, messages, telephone calls, telegrams and the like.


Exclusionary rule:

Any evidence obtained shall be inadmissible for any purpose in any proceeding. However, in the
absence of governmental interference, the protection against unreasonable search and seizure
cannot be extended to acts committed by private individuals. (People v. Martin)

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

What are considered protected speech:

Protected speech includes every form of expression, whether oral, written, tape or disc recorded.
It includes motion pictures as well as what is known as symbolic speech such as the wearing of
an armband as a symbol of protest. Peaceful picketing has also been included within the meaning
of speech.

Prohibitions under Section 4

1. Prohibition against PRIOR RESTRAINT

2. Prohibition against SUBSEQUENT PUNISHMENT


Prohibition against prior restraint

1. Prior restraint means official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination.
2. Examples/forms of prior restraint
a. movie censorship
b. judicial prior restraint = injunction against publication
c. license taxes based on gross receipts for the privilege of engaging in the business
of advertising in any newspaper
d. flat license fees for the privilege of selling religious books

When prohibition does not apply

a. During a war. Ex. Government can prevent publication about the number/locations of its
troops (Near v. Minnesota, 238 US 697)
b. Obscene publications.

Standards for allowable subsequent punishment

TEST CRITERION
1. Dangerous Tendency Test There should be a RATIONAL
CONNECTION between the speech and the
evil apprehended.

2. Clear and Present Danger Test There should be a clear and present danger that
the words when used under such circumstances
are of such a nature as to create a CLEAR AND
PRESENT DANGER that they will bring about
the substantive evils that the State has a right to
prevent.

3. Balancing of Interests Test The courts should BALANCE the PUBLIC


INTEREST served by legislation on one hand
and the FREEDOM OF SPEECH (or any other
constitutional right) on the other. The courts
will then decide where the greater weight should
be placed.

Freedom of Speech

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

Commercial Speech

1. A communication which no more than proposes a commercial transaction.

2. To enjoy protection:
a. It must not be false or misleading; and
b. It should not propose an illegal transaction.

3. Even truthful and lawful commercial speech may be regulated if:


a. Government has a substantial interest to protect;
b. The regulation directly advances that interest; and
c. It is not more extensive than is necessary to protect that interest. (Central Hudson
Gas and Electric Corp. v. Public Service Commission of NY, 447 US 557)

Unprotected Speech

1. LIBEL

A. FAIR COMMENT (U.S. Rule). These are statements of OPINION, not of fact, and are
not considered actionable, even if the words used are neither mild nor temperate. What is
important is that the opinion is the true and honest opinion of the person. The statements
are not used to attack personalities but to give one’s opinion on decisions and actions.

B. OPINIONS. With respect to public personalities (politicians, actors, anyone with a


connection to a newsworthy event), opinions can be aired regarding their public
actuations. Comment on their private lives, if not germane to their public personae, are
not protected.

2. OBSCENITY

A. Test for obscenity (Miller v. California)


i. Whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest.
ii. Whether the work depicts or describes, in a patently offensive way,
sexual conduct, specifically defined by law.
iii. Whether the work, taken as a whole, lacks serious literary, artistic,
political or scientific value.

B. Procedure for seizure of allegedly obscene publications


i. Authorities must apply for issuance of search warrant.
ii. Court must be convinced that the materials are obscene. Apply clear and
present danger test.
iii. Judge will determine whether they are in fact “obscene”.
iv. Judge will issue a search warrant.
v. Proper action should be filed under Art. 201 of the RPC.
vi. Conviction is subject to appeal.

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