F. Freedom of Expression, Assembly and Petition Dichotomy: 1. CHAVEZ VS. SECREATRY GONZALES PUNO, J.: I.

THE FACTS

As a consequence of the public release of copies of the Hello Garci compact disc audiotapes involving a wiretapped mobile phone conversation between then-President Gloria Arroyo and Comelec Commissioner Virgilio Garcillano, respondent DOJ Secretary Gonzales warned reporters that those who had copies of the CD and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered the National Bureau of Investigation to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape. Meanwhile, respondent NTC warned in a press release all radio stations and TV network owners/operators that the conditions of the authorization and permits issued to them by government like the Provisional Authority and/or Certificate of Authority explicitly provides that they shall not use their stations for the broadcasting or telecasting of false information or willful misrepresentation. The NTC stated that the continuous airing or broadcast of the Hello Garci taped conversations by radio and TV stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority. It warned that their broadcast/airing of such false information and/or willful misrepresentation shall be a just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said media establishments. Subsequently, a dialogue was held between the NTC and the Kapisanan ng mga Brodkaster sa Pilipinas (KBP) which resulted in the issuance of a Joint Press Statement which stated, among others, that the supposed wiretapped tapes should be treated with sensitivity and handled responsibly. Petitioner Chavez filed a petition under Rule 65 against respondents Secretary Gonzales and the NTC directly with the Supreme Court. II. THE ISSUES

1. Will a purported violation of law such as the Anti-Wiretapping Law justify straitjacketing the exercise of freedom of speech and of the press?

2. Did the mere press statements of respondents DOJ Secretary and the NTC constitute a form of content-based prior restraint that has transgressed the Constitution? III. THE RULING

[The Court voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Tinga in the majority, as against JJ. Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Velasco in the minority) in granting the petition insofar as respondent Secretary Gonzalezs press statement was concerned. Likewise, it voted 10-5 (CJ Puno, joined by JJ. Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Azcuna, Reyes and Velasco in the majority, as against JJ. Corona, Chico-Nazario, Nachura, Leonardo-De Castro and Tinga in the minority) in granting the same insofar as NTCs press statement was concerned.] 1. NO, a purported violation of law such as the Anti-Wiretapping Law will NOT justify straitjacketing the exercise of freedom of speech and of the press.
A governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. Respondents, who have the burden to show that these acts do not abridge freedom of speech and of the press, failed to hurdle the clear and present danger test. [T]he great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar however are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kindsand doubtless, some of them provide norms of conduct which[,] even if violated[,] have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the

press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.

2. YES, the mere press statements of respondents DOJ Secretary and the NTC constituted a form of content-based prior restraint that has transgressed the Constitution.
[I]t is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.

A. Freedom from censorship or prior restraint 1. OSMENA VS. COMELEC Facts: -Emilio Osmena and other petitioners are candidates in the National Elections. -R.A. No. 6646, the Electoral Reforms Law of 1987, prohibits mass media from selling or giving free of charge print space or air time for campaign or other political purposes, except to the Commission on Elections. -They contend that events after the ruling in National Press Club v. Commission on Elections have called into question the validity of the very premises of that decision. -NPC v. COMELEC upheld the validity of R.A. No. 6646 against claims that it abridged freedom of speech and of the press. In urging a reexamination of that ruling, petitioners claim that experience in the last five years since the decision in that case has shown the undesirable effects of the law because the ban on political advertising has not only failed to level the playing field, but actually worked to the grave disadvantage of the poor candidate[s] by depriving them of a medium which they can afford to pay for while their more affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and handbills. -However, no empirical data were presented by the petitioners to back up their claim. They instead they make arguments from which it is clear that their disagreement is with the opinion of the Court on the constitutionality of R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in that case. Issue: WON upholding the validity of RA 6646 actually worked in favor of richer candidates Held: Petition DISMISSED Ratio: It is incorrect to claim that the purpose of RA 6646 is equality of the candidates when what its provisions really speak of is equality in opportunity. The main purpose of the RA is regulatory. Any restriction on speech is only incidental, and it is no more than is necessary to achieve its purpose of promoting equality of opportunity in the use of mass media for political advertising. The restriction on speech, as pointed out in NPC, is limited both as to time and as to scope. Assuming that rich candidates can spend for parades, rallies, motorcades, airplanes and the like in order to campaign while poor candidates can only afford political ads, the gap between the two will not necessarily be reduced by allowing unlimited mass media advertising because rich candidates can spend for other propaganda in addition to mass media advertising. Moreover, it is not true that 11(b) has abolished the playing field. What it has done, as already stated, is merely to regulate its use through COMELEC-sponsored advertising in place of advertisements paid for by candidates or donated by their supporters.

2. ADIONG VS. COMELEC Facts: COMELEC promulgated Resolution No. 2347 which provides that decals and stickers may be posted only in any of the authorized posting areas, prohibiting posting in "mobile" places, public or private. Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the Resolution. 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.

Issue: Whether or Not the COMELECs prohibition unconstitutional.

Held: The prohibition unduly infringes on the citizen's fundamental right of free speech. The preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. The so-called balancing of interests individualfreedom on one hand and substantial public interests on the other is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of theelectorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. The regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it 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, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. The posting of decals and stickers in mobile places like cars and othermoving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clampover one's mouth or a writing instrument to be stilled. 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 on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. The restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due

process of law. The prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship.

3. NATIONAL PRESS CLUB VS. COMELEC

Case: 3 consolidated petitions, with the common question: the constitutionality of 11(b), of RA6646 Petitoners: representatives of mass media which are prevented from selling or donating space and time for political advertisements; 2 candidates for office (1 national, 1 provincial) in the coming May 1992 elections; taxpayers and voters who claim that their right to be informed of election issues and of credentials of the candidates is being curtailed. (I will refer to these folks as Petitoners (P))

Facts: Petitioners argument: That 11(b), of RA6646 invades and violated the constitutional guarantees comprising freedom of expression; That the prohibition imposed by 11(b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election pd. of 1992; That the prohibition is in derogation of medias role, function and duty to provide adequate channels of public information and public opinion relevant to election issues; That 11(b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and tv broadcasts, would bring about a substantial reduction in the quantity or volume of info concerning candidates and issues in the election, thereby curtailing and limiting the right of voters to info and opinion. Issue: WON 11(b) of RA 6646 has gone beyond the permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech & freedom of the press SC says: Nope. It has not gone outside the permissible bounds of supervision or regulation of media operations during election periods.

Ratio: The assailed statute The statutory text the P want to strike down as unconstitutional is 11(b) of RA 6646, aka the Electoral Reforms Law of 1987

Section 11. Prohibited Forms of Election Propaganda-in addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful; (b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use of the mass media to sell or to give free of charge print

space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer, or personality who is candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.

11(b) of RA 6646 should be taken together with Sections 90 & 92 of BP 881 aka Omnibus Election Code of the Philippines. (for the full text, see p. 7) 90 refers to the Comelec space- space in the newspaper to be allocated equally and impartially to all the candidates within the area of coverage, free of charge 92 refers to the Comelec time air time in radio and tv to be allocated equally and impartially to all the candidates within the area of coverage, free of charge.

Objective of the statute Objective of 11(b)-to equalize, as far as practicable, the situations of rich and poor candidates by preventing the rich from enjoying undue advantage offered by huge campaign war chests. It prohibits the sale or donation of print space and air time for campaign or other political purposes except to Comelec. 90&92 of the OEC on the other hand, require the Comelec to procure Comelec space and Comelec time to be allocated to all candidates for free. No one seriously disputes the legitimacy or the importance of the objective sought to be secured by 11(b) of RA 6646 in relation to 90&92 of the OEC. The objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of the society. It is important to note, that the objective, is not only a legitimate one, it has also been given constitutional status by the terms of Art. IX(C)(4) of the 1987 Consti.

Art. IX-C, Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision,

agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, and equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections.

Anent Constitutionality of 11(b)

The Comelec has been expressly authorized by the Cosnti to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and info. The fundamental purpose of such supervision or regulation has been spelled out in the Consti as the ensuring of 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, in connection with public info campaigns and forums among candidates. It seems a modest proposition that the provision of the Bill of Rights which enshrines the freedom of speech, freedom of expression, and freedom of the press1, has to be taken in conjunction with Art. IX (C) (4) which may be seen to be a special provision applicable during a specific limited period, i.e. during election pd. The rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equal opportunity to proffer oneself for public office, without regard to ones financial capacity, is clearly an important value. One of the basic state policies given constitutional rank by Art. II, 26, Consti, is the egalitarian demand that the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law. The technical effect of Art. IX(C)(4) of the Consti, may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. Supervision and regulation of the operations of media enterprises is scarcely conceivable without accompanying limitations. Thus the time-honored rule: A statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of 11(b) is circumscribed by certain important limitations: 1. 11(b) is limited in the duration of its applicability and enforceability. It is limited to election periods.

Art. III, Section 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 grievances

2. 11(b) is limited in its scope of application. Analysis shows that it purports to apply only to the purchase and sale, incl. purchase and sale disguised as a donation, of print space and air time for campaign purposes or other political purposes. a. It does not purport in any way to restrict reporting by newspapers or radio or tv stations of news or newsworthy events relating to candidates, their qualifications, political parties and govt programs. b. It does not restrict commentaries and expressions of belief or opinion by reporters, broadcasters, editors, etc. with respect to candidates, their qualifications, etc. This is what distinguishes this case from Sanidad v. Comelec-There, the provision prohibiting columnists, commentators or announcers from campaigning for their candidate was declared by SC as unconstitutional because nothing in the consti gave Comelec the power to regulate their acts, as they are not franchise holders nor candidates. c. It does not prohibit purchase by or donation to the Comelec of print space or air time. And Comelec is required to allocate the same equally and impartially to all the candidates. Re apprehension on possibility of abuse: Angara v. Electoral Commission: the possibility of abuse is no argument against the concession of power or authority involved, for there is no power or authority in human society that is not susceptible of being abused. If the Comelec fails to do its duty (procure print space or air time), then candidates can seek judicial relief.

In Summary, 11(b) 1. Does not cut off the flow of media reporting, opinion, or commentary about candidates, their qualifications, and platforms and promises 2. Does not authorize any intervention and much less control on the content of the normal operations of the media 3. Does not prohibit Comelec from procuring print space and air time for the candidates. Whatever limitation 11(b) entails bears a clear and reasonable connection with the objective set out in Art. IX(C)(4) and Art. II(26) of the Consti.

Anent Cruzs assigned flaw-that it still does not restrict the rich candidate from spending on
other campaign activities.

 A regulatory measure that is less than perfectly comprehensive or which does not completely obliterate the evil sought to be remedied, is not for that reason alone constitutionally infirm. The Consti does not, and cannot exact perfection in governmental regulation. All it requires, in accepted doctrine, is that the regulatory measure under challenge bear a reasobable nexus with the constitutionality sanctioned objective.

Anent invasion of privacy

Plus, super daming paid campaigns constitute invasion of privacy of the general electorate. Kaya daw ok lang to control especially the rich who can afford to bombard the helpless electorate with paid advertisements. The right of the general listening and viewing public to be free form such intrusions and their subliminal effects is at least as important as the right of the candidates to advertise themselves. Held: Petitions DISMISSED for lack of merit.

4. SANIDAD VS. COMELEC Facts: On 23 October 1989, RA 6766 (Act providing for an organic act for the Cordillera Autonomous Region) was enacted into law. The plebiscite was scheduled 30 January 1990. The Comelec, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), RA 6766 and other pertinent election laws, promulgated Resolution 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. Pablito V. Sanidad, a newspaper columnist of Overview for the Baguio Midland Courier assailed the constitutionality of Section 19 (Prohibition on columnists, commentators or announcers) of the said resolution, which provides During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues. Issue: Whether columnists are prohibited from expressing their opinions, or should be under Comelec regulation, during plebiscite periods. Held: Article IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. Neither Article IX-C of the Constitution nor Section 11-b, 2nd paragraph of RA 6646 (a columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period) can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution 2167 has no statutory basis.

5. SOCIAL WEATHER STATION VS. COMELEC Facts: The Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features news-worthy items of information including election surveys. SWS and Kamahalan Publishing brought the action for prohibition with the Supreme Court to enjoin the Commission on Elections from enforcing 5.4 of RA 9006 (Fair Election Act), which provides 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 (7) days be- fore an election." SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Kamahalan Publishing, on the other hand, states that it intends to publish election survey results up to the last day of the elections on 14 May 2001. They 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. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. Issue: Whether 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. Held: 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. 5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of 15 days immediately preceding a national election and 7 days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to the Supreme Court bearing a heavy presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. There, thus a reversal of the normal presumption of validity that inheres in every legislation. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of

election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of 15 days immediately before a national election and 7 days immediately before a local election. In fine, 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.

7. NEWSOUNDS BROADCASTING NETWORK VS. DY Facts: Petitioners operate and run Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station, and Star FM DWIT Cauayan, an FM radio broadcast station, in Cauayan Citry, Isabela. Back in 1996, Newsounds commenced relocation of its broadcasting station, management office, and transmitters on propery located in Minante 2, Cauayan City, Isabela. On July 1996, the Housing & Land Use Regulatory Board (HLURB) and Office of the Municipal Planning and Development Coordinator (OMPDC) affirmed and certified that the commercial structure to be constructed conformed to local zoning regulations, noting as well that the location is classified as a commercial area. The radio station was able to fully operate smoothly thereafter. In 2002 however, when petitioners applied for a renewal of mayors permit, City Zoning Administratior-Designate Bagnos Maximo refused to issue zoning clearance on the grounds that petitioners were not able to submit conversion papers showing that the agricultural land was converted to commercial land. Petitioners asked the court to compel the issuance of mayors permit but the court denied the action. In the meantime, the Department of Agrarian Reform (DAR) Region II office issued to petitioners a formal recognition of conversion of the property from agricultural to commercial. In 2003, petitioners again filed their application for renewal of mayors permit, attaching the DAR Order. Respondent Felicisimo Meer, acting City Administrator of Cauayan City denied the same, claiming that it was void on the grounds that they did not have record of the DAR Order. The deadline lapsed on Febuary 15, 2004, and respondents Meer and Racma Fernandez-Garcia, City Legal Officer of Cauayan City, closed the radio station. Due to the prvosion of Omnibus Election Code which prohibits the closure of radio station during the pendency of election period, COMELEC issued an order allowing the petitioners to operate before Febuary 17, 2004, but was barred again by respondent Mayor Ceasar Dy on the grounds that the radio station had no permit. Nonetheless, COMELEC allowed them to run again until June 10, 2004 after elections. Petitioners filed the case to the RTC and CA for the issuance of mayors permit but both courts denied the petition. A municipal or city mayor is likewise authorized under the LGC to issue licenses and permits, and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance. In case of Cauayan City, the authority to require a mayors permit was enacted through Ordinance No. 92-004, enacted in 1993. However, nothing in the ordinance requires an application for a mayors permit to submit either an approved land conversion papers from DAR, showing that its property was converted from prime agricultural land or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the reclassification of property from agricultural to commercial land. In 1996, the HLURB issued a zoning decision that classified the property as commercial.

Petitioners are also armed with several certifications stating that the property is indeed a commercial area. Also, petitioners paid real property taxes based on the classification of property as commercial without objections raised by the respondents. Petitioners argued that this consistent recognition by the local government of Cauayan of the commercial character of the property constitutes estoppels against respondents from denying the fact before the courts. The lower courts had ruled that the government of Cauayan City is not bound by estoppels, but petitioners classified that this concept is understood to only refer to acts and mistakes of its official especially to those which are irregular. Issue: Whether the lower court is correct in contending that the government of Cauayan City is not bound by estoppels on the grounds that the state is immune against suits. Held: No. While it is true that the state cannot be put in estoppels by mistake or error of its officials or agents, there is an exception. Estoppels against the public are little favored. They should not be invoked except in rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public. They must be applied with circumspection and should be applied only in those special cases where the interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations . . ., the doctrine of equitable estoppel may be invoked against public authorities as well as against private individuals Thus, when there is no convincing evidence to prove irregularity or negligence on the part of the government official whose acts are being disowned other than the bare assertion on the part of the State, the Supreme Court have declined to apply State immunity from estoppel. Herein, there is absolutely no evidence other than the bare assertions of the respondents that the Cauayan City government had previously erred when it certified that the property had been zoned for commercial use. The absence of any evidence other than bare assertions that the 1996 to 2001 certifications were incorrect lead to the ineluctable conclusion that respondents are estopped from asserting that the previous recognition of the property as commercial was wrong. Respondents were further estopped from disclaiming the previous consistent recognition by the Cauayan City government that the property was commercially zoned unless they had evidence, which they had none, that the local officials who issued such certifications acted irregularly in doing so. It is thus evident that respondents had no valid cause at all to even require petitioners to secure approved land conversion papers from the DAR showing that the property was converted from prime agricultural land to commercial land. Respondents closure of petitioners radio stations is clearly tainted with ill motvies. Petitioners have been aggressive in exposing the widespread election irregularities in Isabela that appear

to have favored respondent Dy and his political dynasty. Such statement manifests and confirms that respondents denial of the renewal applications on the ground that property is commercial and merely a pretext, and their real agenda is to remove petitioners from Cauayan City and suppress the latters voice. This is a blatant violation of constitutional right to press freedom.

WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE. The instant petition for mandamus is hereby GRANTED and respondents are directed to immediately issue petitioners zoning clearances and mayors permits for 2004 to petitioners.

TEST OF VALID GOVERNMENTAL INTERFERENCE

1, PEOPLE VS. PEREZ Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to meet on the morning of April 1, 1992, in thepresidencia of Pilar, they became engaged in a discussion regarding the administration of Governor-General Wood, which resulted in Perez shouting a number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the Filipinos, for he has killed our independence." Charged in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code having to do with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has appealed the case to this court. The question presented for decision is, What crime, if any, did the accused commit? chanrobles virtual law library A logical point of departure is the information presented in this case. It reads in translation as follows: That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said accused, Isaac Perez, while holding a discussion with several persons on political matters, did criminally, unlawfully and wilfully and with knowledge that Honorable Leonard Wood was the Governor-General of the Philippine Islands and in the discharge of his functions as such authority, insult by word, without his presence, said Governor-General, uttering in a loud voice and in the presence of many persons, and in a public place, the following phrases: "Asin an manga filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the Philippines.chanroblesvirtualawlibrary chanrobles virtual law library Contrary to article 256 of the Penal Code. At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense. According to the first witness for the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in question was this:chanrobles virtual law library "The Filipinos, like myself, should get a bolo and cut off the head of Governor-General Wood, because he has recommended a bad administration in these Islands and has not made a good recommendation; on the contrary, he has assassinated the independence of the Philippines and for this reason, we have not obtained independence and the head of that Governor-General must be cut off." Higinio J. Angustia, justice of the peace of Pilar, in a written statement, and Gregorio Cresencio, another witness for the prosecution, corroborated the testimony of the first witness. Cresencio understood that Perez invited the Filipinos including himself to get their bolos and cut off the head of Governor-General Wood and throw it into the sea.chanroblesvirtualawlibrary chanrobles virtual law library

The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused participated. But they endeavored to explain that the discussion was between Perez and one Severo Madrid, the latter maintaining that the fault was due to the Nacionalista Party, while Perez argued that the Governor-General was to blame. The accused testified that the discussion was held in a peaceful manner, and that what he wished to say was that the Governor-General should be removed and substituted by another. On the witness stand, he stated that his words were the following: "We are but blaming the Nacionalista Party which is in power but do not take into account that above the representatives there is Governor-General Wood who controls everything, and I told him that the day on which the Democrats may kill that Governor-General, then we, the Filipinos will install the government we like whether you Democratas want to pay or not to pay taxes." chanrobles virtual law library The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the accused made use of the language stated in the beginning of this decision and set out in the information. The question of fact thus settled, the question of law recurs as to the crime of which the accused should be convicted.chanroblesvirtualawlibrary chanrobles virtual law library It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial judge so found in his decision. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower court and is to the effect that article 256 of the Penal Code is no longer in force.chanroblesvirtualawlibrary chanrobles virtual law library In the case of United States vs. Helbig ([1920], R. G. No. 14705 1 ), the accused was charged with having uttered the following language: "To hell with the President of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and though the case was eventually sent back to the court of origin for a new trial, the appellate court by majority vote held as a question of law that article 256 is still in force.chanroblesvirtualawlibrary chanrobles virtual law library In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published an article reflecting on the Philippine Senate and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by unanimous vote, with three members of the court holding that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines, and with six members holding that the Libel Law had the effect of repealing so much of article 256 as relates to written defamation, abuse, or insult, and that under the information and the facts, the defendant was neither guilty of a violation of article 256 of the Penal Code nor of the libel Law. In the course of the main opinion in the Perfecto case, is found this significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as to this point, it is not necessary to make a pronouncement." chanrobles virtual law library It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we can muster, that until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to ministers of the Crown or to writings coming under the Libel Law, exist and must be enforced. To which proposition, can properly be appended a corollary, namely: Seditious words, speeches, or libels, constitute a

violation of Act No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and the Libel Law are modified.chanroblesvirtualawlibrary chanrobles virtual law library Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the law infringed in this instance is not this article but rather a portion of the Treason and Sedition Law. In other words, as will later appear, we think that the words of the accused did not so much tend to defame, abuse, or insult, a person in authority, as they did to raise a disturbance in the community.chanroblesvirtualawlibrarychanrobles virtual law library In criminal law, there are a variety of offenses which are not directed primarily against individuals, but rather against the existence of the State, the authority of the Government, or the general public peace. The offenses created and defined in Act No. 292 are distinctly of this character. Among them is sedition, which is the raising of commotions or disturbances in the State. It is a revolt against legitimate authority. Though the ultimate object of sedition is a violation of the public peace or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil., 64.) chanrobles virtual law library It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of speech and the right of the people peaceably to assemble and petition the Government for redress of grievances. Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto, supra.)chanrobles virtual law library Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the Presidency of the United States and other high offices, under a democratic form of government, instead, of affording immunity from promiscuous comment, seems rather to invite abusive attacks. But in this instance, the attack on the Governor-General passes the furthest bounds of free speech was intended. There is a seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws.chanroblesvirtualawlibrary chanrobles virtual law library The Governor-General is an executive official appointed by the President of the United States by and with the advice and consent of the Senate of the United States, and holds in his office at the pleasure of the President. The Organic Act vests supreme executive power in the GovernorGeneral to be exercised in accordance with law. The Governor-General is the representative of executive civil authority in the Philippines and of the sovereign power. A seditious attack on the Governor-General is an attack on the rights of the Filipino people and on American sovereignty.

(Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.) chanrobles virtual law library Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have been placed on the statute books exactly to meet such a situation. This section reads as follows: Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels against the Government of the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or make any statement, or speech, or do any act which tends to disturb or obstruct any lawful officer in executing his office or in performing his duty, or which tends to instigate others to cabal or meet together for unlawful purposes, or which suggests or incites rebellious conspiracies or which tends to stir up the people against the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the Government, or who shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding two thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the discretion of the court. In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate others to cabal or meet together for unlawful purposes. He has made a statement and done an act which suggested and incited rebellious conspiracies. He has made a statement and done an act which tended to stir up the people against the lawful authorities. He has made a statement and done an act which tended to disturb the peace of the community and the safety or order of the Government. All of these various tendencies can be ascribed to the action of Perez and may be characterized as penalized by section 8 of Act No. 292 as amended.chanroblesvirtualawlibrary chanrobles virtual law library A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended, is, in effect, responsive to, and based upon, the offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive. The crime of which the defendant stands charged is that described by the facts stated in the information. In accordance with our settled rule, an accused may be found guilty and convicted of a graver offense than that designated in the information, if such graver offense is included or described in the body of the information, and is afterwards justified by the proof presented during the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure, p. 9.) chanrobles virtual law library The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think, sufficiently punish the accused.chanroblesvirtualawlibrary chanrobles virtual law library That we have given more attention to this case than it deserves, may be possible. Our course is justified when it is recalled that only last year, Mr. Chief Justice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of the Porto Rico, observed: "A reading of the two articles removes the slightest doubt that they go far beyond the "exuberant expressions of meridional speech," to use the expression of this court in a similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so excessive and outrageous

in their character that they suggest the query whether their superlative vilification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While our own sense of humor is not entirely blunted, we nevertheless entertain the conviction that the courts should be the first to stamp out the embers of insurrection. The fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it endangers the general public peace.chanroblesvirtualawlibrary chanrobles virtual law library The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section 8 of Act No. 292 as amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance with the sentence of the lower court, the defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So ordered.chanrobl

2. LAGUNZAD VS. DE GONZALES Facts: Sometime in August 1961, Manuel Lagunzad, a newspaperman, began the production of a movie entitled "The Moises Padilla Story" under the name of his own business outfit, the "MML Productions." 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 rights to which Lagunzad had purchased from Atty. Rodriguez in the amount of P2,000.00. The book narrates the events which culminated in the murder of Moises Padilla sometime between November 11 and November 17, 1951. Padilla was then a mayoralty candidate of the Nacionalista Party (then the minority 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 People vs. Lacson, et al. 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, and of one "Auring" as his girlfriend. The movie was scheduled for a premiere showing on 16 October 1961, or at the very latest, before the November 1961 elections. On 3 October 1961, Lagunzad received a telephone call from one Mrs. Nelly Amante, half-sister of Moises Padilla, objecting to the filming of the movie and the "exploitation" of his life. Shown the early "rushes" of the picture, Mrs. Amante and her sister, Mrs. Gavieres, objected to many portions thereof notwithstanding Lagunzad's explanation that the movie had been supervised by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in Negros." On 5 October 1961, Mrs. Amante, for and in behalf of her mother, demanded in writing for certain changes, corrections and deletions in the movie. Lagunzad contends that he acceded to the demands because he had already invested heavily in the picture to the extent of mortgaging his properties, in addition to the fact that he had to meet the scheduled target date of the premiere showing. On the same date, 5 October 1961, after some bargaining as to the amount to be paid, which was P50,000.00 at first, then reduced to P20,000.00, Lagunzad and Soto vda. De Gonzales, represented by her daughters and Atty. Ernesto Rodriguez, at the law office of Jalandoni and Jamir, executed a "Licensing Agreement." Lagunzad takes the position that he was pressured into signing the Agreement because of Soto vda. de Gonzales' demand, through Mrs. Amante, for payment for the "exploitation" of the life story of Moises Padilla, otherwise, she would "call a press conference declaring the whole picture as a fake, fraud and a hoax and would denounce the whole thing in the press, radio, television and that they were going to Court to stop the picture." On 10 October 1961, Lagunzad paid Soto vda. de Gonzales the amount of P5,000.00 but contends that he did so not pursuant to their Agreement but just to placate the latter. On 14 October 1961, the filming of the movie was completed. On 16 October 1961, a premiere showing was held at the Hollywood Theatre, Manila, with the Moises Padilla Society as its sponsor. Subsequently, the movie was shown in different theaters all over the country. Because Lagunzad refused to pay any additional amounts pursuant to the Agreement, on 22 December 1961, Soto vda. de Gonzales instituted the suit against him praying for judgment in her favor ordering Lagunzad (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. By way of counterclaim, Lagunzad demanded that the Licensing Agreement be declared null and void for

being without any valid cause; that Soto vda. De Gonzales be ordered to return to him the amount of P5,000.00; and that he be paid P50,000.00 by way of moral damages, and P7,500.00 as attorney's fees. On 30 June 1964, the trial Court rendered a Decision in favor of Soto vda. de Gonzales. On appeal to the Court of Appeals, the latter Court affirmed the judgment. Reconsideration having been denied by the Court, Lagunzad filed the Petition for Review on Certiorari. Initially, or on 16 June 1970, the Supreme Court denied the Petition for lack of merit, but resolved subsequently to give it due course after Lagunzad moved for reconsideration on the additional argument that the movie production was in exercise of the constitutional right of freedom of expression, and that the Licensing Agreement is a form of restraint on the freedom of speech and of the press. Issue: Whether the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, Lagunzad had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint. Held: The right of freedom of expression occupies a preferred position in the "hierarchy of civil liberties." It is not, however, without limitations. As held in Gonzales vs. Commission on Elections (27 SCRA 835, 858 [1969]), "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. The realities of life in a complex society preclude however, a literal interpretation. Freedom of expression is not an absolute. 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." Herein, the interests observable are the right to privacy asserted by Soto vda. de Gonzales and the right of freedom of expression invoked by Lagunzad. Taking into account the interplay of those interests, the COurt holds that under the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by Lagunzad, 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. The court denied the petition for review.

3. ABS-CBN VS. COMELEC The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban properly conducted and publicized can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people.them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls

The Case and the Facts

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.

The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the . . . May 11 elections.

The Court's Ruling

The Petition5 is meritorious.

Main Issue: Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."

It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights. The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel. Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press.

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."14 Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change.17 It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.18 It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with.

Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances.20 They are not immune to regulation by the State in the exercise of its police power.21 While the liberty to think is absolute, the power to express such thought in words and deeds has limitations.

In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such freedoms, as follows: These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. . . .23 The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.24 Unquestionably, this Court adheres to the "clear and present danger" test. In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "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."32 A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34

Justification for a Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity.35 And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows,36 so it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly shown.37 Thus: A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.38

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant. to add meaning to the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech."41 When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be 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.42 True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.43 WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

MOVIE CENSORSHIP 1. GONZALES VS. KATIGBAK Facts: Jose Antonio U. Gonzalez is the President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade; while Maria Kalaw Katigbak and Brig. Gen. Wilfredo C. Estrada are the Chairman and Vice-Chairman, respectively of the Board of Review for Motion Pictures and Television. In a resolution of a sub-committee of the Board of 23 October 1984, a permit to exhibit the film "Kapit sa Patalim" under the classification "For Adults Only," with certain changes and deletions enumerated was granted. The film in issue was given an adult classification to serve as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes. The Board gave Malaya films an option to have the film reclassified to ForGeneral-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film. A motion for reconsideration was filed by Gonzales, in behalf of Malaya Films, Lino Brocka, Jose F. Lacaba, and Dulce Q. Saguisag, stating that the classification of the film "For Adults Only" was without basis. Then on 12 November 1984, the Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withhold the issuance of the Permit to exhibit until these deficiencies are supplied." On 10 January 1985, Gonzales, et. al. filed the petition for certiorari with the Supreme Court. Issue: Whether the Board of Review for Motion Pictures and Television have the power to classify the movie Kapit sa Patalim under the classification For Adults Only and impose conditions to edit the material to allow it a General patronage rating. Held: Motion pictures are important both as a medium for the communication of ideas and the expression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. The "importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform." There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Press freedom "may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment."

This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a substantive evil that [the State] has a right to prevent.'" Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is, however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. To avoid an unconstitutional taint on its creation, the power of the Board is limited to the classification of films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. The test, to repeat, to determine whether freedom of expression may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the requirement of its being well-nigh inevitable. The basic postulate, therefore, is that where the movies, theatrical productions, radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship, especially so if an entire production is banned, 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. There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor." The law, however, frowns on obscenity. All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. There was an abuse of discretion by the Board in the light of the difficulty and travail undergone by Gonzales, et. al. before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover the Boards perception of what constitutes obscenity appears to be unduly restrictive. The Court concludes thus that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie.

3. AYER PRODUCTIONS VS. JUDGE CAPULONG Facts: Hal McElroy, an Australian film maker, and his movie production company,Ayer Productions Pty. Ltd., envisioned, sometime in 1987, the filming for commercial viewing and for Philippine and international release, the historic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). McEleroy discussed this project with local movie producer Lope V. Juban, who advised that they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as well as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. In a letter dated 16 December 1987, McElroy, informed Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it. On 21 December 1987, Enrile replied that "he would not and will not approve of 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" and further advised McElroy that "in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to him or any member of his family, much less to any matter purely personal to them." It appears that McElroy acceded to this demand and the name of Enrile was deleted from the movie script, and McElroy proceeded to film the projected motion picture. On 23 February 1988, Enrile filed a Complaint with application for Temporary Restraining Order and Writ of Preliminary Injunction with the Regional Trial Court of Makati (Civil Case 88-151; Branch 134), seeking to enjoin McElroy, et. al. from producing the movie "The Four Day Revolution." The complaint alleged that McElroy, et. al.'s production of the mini-series without Enrile's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, McElroy filed a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series film would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet been completed. In an Order dated 16 March 1988, the trial court issued a writ of Preliminary Injunction against the McElroy, et. al. On 22 March 1988, Ayer Productions filed a Petition for Certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order with the Supreme Court (GR L82380). A day later, or on 23 March 1988, McElroy also filed a separate Petition for Certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988 (GR L-82398). By a Resolution dated 24 March 1988, the petitions were consolidated. Issue: Wnether depiction of Enrile, as part of the events in the 1986 People Power Revolution and not as to his personal life nor his family, in the film The Four Day Revolution requires his prior consent. Held:

The freedom of speech and of expression includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a universally utilized vehicle of communication and medium of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. This freedom is available in our country both to locally-owned and to foreignowned motion picture companies. Furthermore, the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community, as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in part to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exercise of constitutionally protected freedom of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing claim of Enrile is to a right of privacy. Our law, constitutional and statutory, does include a right of privacy. It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute matters of a public character. Succinctly put, the right of privacy cannot be invoked to resist publication and dissemination of matters of public interest. The interest sought to be protected by the right of privacy is the right to be free from "unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern." Herein, there is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by McElroy, et. al. The Judge has restrained them from filming and producing the entire proposed motion picture. The Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by Enrile and issuing a Preliminary Injunction 20 days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither Enrile nor the 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 Enrile could lawfully assert. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the train of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern, and also of international interest. The subject relates to a highly critical stage in the history of this country and as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject matter does not relate to the individual life and certainly not to the private life of Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile; but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986. The extent of the intrusion upon the life of Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical

account. Enrile does not claim that McElroy, et. al. threatened to depict in "The Four Day Revolution" any part of the private life of Enrile or that of any member of his family. The line of equilibrium in the specific context of the present 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. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. There must, further, be no presentation of the private life of the unwilling individual (Enrile) and certainly no revelation of intimate or embarrassing personal facts. The proposed motion picture should not enter into a "matters of essentially private concern." To the extent that "The Four Day Revolution" limits itself in portraying the participation of Enrile in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into Enrile's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from Enrile.

4. IGLESIA NI CRISTO VS. CA THE FACTS Several pre-taped episodes of the TV program Ang Iglesia ni Cristo of the religious group Iglesia ni Cristo (INC) were rated X i.e., not for public viewing by the respondent Board of Review for Moving Pictures and Television (now MTRCB). These TV programs allegedly offend[ed] and constitute[d] an attack against other religions which is expressly prohibited by law because of petitioner INCs controversial biblical interpretations and its attacks against contrary religious beliefs. Petitioner INC went to court to question the actions of respondent Board. The RTC ordered the respondent Board to grant petitioner INC the necessary permit for its TV programs. But on appeal by the respondent Board, the CA reversed the RTC. The CA ruled that: (1) the respondent Board has jurisdiction and power to review the TV program Ang Iglesia ni Cristo, and (2) the respondent Board did not act with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of Ang Iglesia ni Cristo on the ground that the materials constitute an attack against another religion. The CA also found the subject TV series indecent, contrary to law and contrary to good customs. Dissatisfied with the CA decision, petitioner INC appealed to the Supreme Court. II. THE ISSUES (1) Does respondent Board have the power to review petitioners TV program? (2) Assuming it has the power, did respondent Board gravely abuse its discretion when it prohibited the airing of petitioners religious program? III. THE RULING

[The Court voted 13-1 to REVERSE the CA insofar as the CA sustained the action of the respondent Boards X-rating petitioners TV Program Series Nos. 115, 119, and 121. It also voted 10-4 to AFFIRM the CA insofar as the CA it sustained the jurisdiction of the respondent MTRCB to review petitioners TV program entitled Ang Iglesia ni Cristo.] 1. YES, respondent Board has the power to review petitioners TV program.

Petitioner contends that the term television program [in Sec. 3 of PD No. 1986 that the respondent Board has the power to review and classify] should not include religious programs like its program Ang Iglesia ni Cristo. A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which guarantees that no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and

enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. [The Court however] reject petitioners postulate. Petitioners public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. . . [T]he Court] shall continue to subject any act pinching the

space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still. 2. YES, respondent Board gravely abuse its discretion when it prohibited the airing of petitioners religious program.
[A]ny act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar. The evidence shows that the respondent Board x-rated petitioners TV series for attacking either religions, especially the Catholic Church. An examination of the evidence . . . will show that the so-called attacks are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. xxx. The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. . . In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of duelling ideas. When the luxury of time

permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. In American Bible Society v. City of Manila, this Court held: The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be justified like other restraints on freedom of expression on the ground that there is a clear and present danger of any substantive evil which the State has the right to prevent. In Victoriano vs. Elizalde Rope Workers Union, we further ruled that . . . it is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger. The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech, including religious speech, cannot be justified

by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.

5. VIVA PRODUCTIONS VS. CA FACTS: Assailed in the petition before us are the decision and resolution of respondent Court of Appeals sustaining both the order of the Regional Trial Court of the National Capital JudicialRegion (Paraaque, Branch 274 hereinafter referred to as the Paraaque court) restraining "the exhibition of the movie 'The Jessica Alfaro Story' at its scheduled premiere showing at the New Frontier Theater on September 11, 1995 at 7:30 in the evening and at its regular public exhibition beginning September 13,1995, as well as to cease and desist from promoting and marketing of the said movie. writ of preliminary injunction "enjoining petitioner from further proceeding, engaging, using or implementing the promotional, advertising and marketing programs for the movie entitled 'The Jessica Alfaro Story' and from showing or causing the same to be shown or exhibited in all theaters in the entire country UNTIL after the final termination and logical conclusion of the trial in the criminal action now pending before the Paraaque Regional Trial Court. Ma. Jessica M. Alfaro the star witness of the Vizconde massacre was offered a movie contract by Viva Productions, Inc. for the filming of her life story, she inked with the latter the said movie contract while the said case (I.S. 95-402) was under investigation by the Department of Justice. The private respondent sent separate letters to Viva Productions, Inc. and Alfaro, warning them that the projected showing of subject movie on the life story of Alfaro would violate the sub judice rule, and his (Hubert J.P. Webb's) constitutional rights as an accused in said criminal case.

ISSUE: 1. Whether or not private respondent committed forum shopping by filing two (2) cases with exactly the same factual set-up, issues involved and reliefs sought before two (2) different courts of coordinate jurisdiction.

2. Whether or not the Paraaque Court can totally disregard and indiscriminately curtail the petitioners constitutional right to freedom of expression and of the press without presen ce of a clear and present danger.

HELD: 1.The private respondent has committed forum shopping. It is found that a shrewd and astute maneuverings of private respondent ill-advised. It wont escape anybody's notice that the act of filing the supposed action for injunction with damages with the Makati court, albeit a separate and distinct action from the contempt proceedings then pending before the Paraaque court, is obviously and solely intended to obtain the preliminary relief of injunction so as to

prevent petitioner from exhibiting the movie on its premiere and on its regular showing. The alleged relief for damages becomes a mere subterfuge to camouflage private respondent's real intent and to feign the semblance of a separate and distinct action from the contempt proceedings already filed and on- going with the Paraaque court.

2. The assailed decision and order of respondent court are SET ASIDE, and a new one entered declaring null and void all orders of Branch 58 of the Regional Trial Court of the National Capital Judicial Region stationed in Makati City in its Civil Case No. 95-1365 and forthwith dismissing said case, and declaring the order of the Regional Trial Court of the same National Capital Judicial Region stationed in Paraaque (Branch 274), functus officio insofar a sit restrains the public showing of the movie "The Jessica Alfaro Story.

6. MTRCB VS ABS-CBN FACTS: On October 15, 1991 at 10:45 P.M., ABS-CBN aired an episode on The Inside Story called Prosti-tuition. The segment was produced and hosted by respondent Legarda. The story depicted female students moonlighting as prostitutes in order for them to pay for their tuition fees. Philippine Womens University (PWU) was named in the program as the school of some the students that were involved. PWU officials and the PWU Parents and Teachers Association filed letter to complaints to petitioner MTRCB, and the legal counsel of the MTRCB recommended the investigation of the said episode. The MTRCB Investigating committee alleged that (1) the respondents did not submit The Inside Story to the petitioner for its review and (2) exhibited the same without its permission, thus, violating Section 7 of PD 1986 and Section 3, Ch.7 and Section 7 Ch. 4 of the MTRCB Rules and Regulations. In their

answer, respondents explained that the show (a news documentary and sociopolitical editorial program) is protected by the constitutional provision on freedom of expression and of the press. The results of the investigation did not favor the
respondents. A portion of the decision of the MTRCB Investigating Committee reads:

WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review and approval of the MTRCB. Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS-CBN Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing; otherwise the Board will act accordingly.
Respondents appeal and Motion for Reconsideration were denied by MTRCB Chairwoman Atty. Henrietta S. Mendez. The respondents then files a special civil action for certiorari with the RTC Branch 77 of QC seeking to: (1) declare unconstitutional the provisions in question; (2) exclude The Inside Story from the coverage of the above-cited provisions; and (3) annul and set aside the MTRCB Decision. The RTC rendered a decision in favor of the respondents on all issues raised. Petitioners filed for a motion of reconsideration but were denied. Hence, this petition for review on certiorari. ISSUE/S: Whether or not the MTRCB has the power or authority to review The Inside Story prior to its exhibition or broadcast by television. RULING:

WHEREFORE, the instant petition is GRANTED. The assailed RTC Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents.

SO ORDERED.
LEGAL ARGUMENTS/BASIS: Television programs are more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot apply to the former. In the case Iglesia ni Cristo vs. Court of Appeals, the Court ruled that P.D. No. 1986 gives the MTRCB the power to screen, review and examine all television programs. There is nothing in the law that would justify an exclusion of any program (except those expressly mentioned Section 7 of P.D. 1986: programs imprinted or exhibited by the Philippine Government or, newsreels) from the regulations of the MTRCB.

If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom The Inside Story which, according to respondents, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status.
The Inside Story cannot be classified, as attempted by the respondents, to be under newsreels.

Apparently, newsreels are straight presentation of events. They are depiction of actualities. Correspondingly, the MTRCB Rules and Regulations implementing P. D. No. 1986 define newsreels as straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are not considered newsreels.

C. UNPROTECTED SPEECH 1. U.S. VS. KOTTINGER Facts: On 24 November 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently were used as evidenced against J. J. Kottinger, the manager of the company. The information filed in court charged him with living kept for sale in the store of the Camera Supply Co., obscene and indecent pictures, in violation of section 12 of Act 277. To this information, Kottinger interposed a demurrer based upon the ground that the facts alleged therein did not constitute an offense and were not contrary to law; but the trial court overruled the demurrer. Following the presentation of evidence by the Government and the defense, judgment was rendered finding Kottinger guilty of the offenses charged and sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency, and the costs. Kottinger appealed. Issue: Whether pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are obscene or indecent. Held: The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six different postures of non-Christian inhabitants of the Philippines \ ("Philippines, Bontoc Woman"; a picture of five young boys and carries the legend "Greetings from the Philippines"; "Ifugao Belle, Philippines. Greetings from the Philippines"; "Igorrot Girl, Rice Field Costume"; "Kalinga Girls, Philippines"; and "Moros, Philippines") None of the pictures represented posses which he had not observed on various occasions, and that the costumes worn by the people in the pictures are the true costumes regularly worn by them, according to Dr. H. Otley Beyer, Professor in the University of the Philippines. Although the Federal statutes prohibits the importation of shipment into the Philippine Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten matter, paintings, illustrations, or objects of obscene or indecent character or subversive of public order"; there are, in the record, copies of reputable magazines which circulate freely thru-out the United States and other countries, and which are admitted into the Philippines without question, containing illustrations into the Philippines without question, containing illustrations identical in nature to those in the present case. Publications of the Philippine Government have also been offered in evidence such as Barton's "Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or nearly akin to those which are now impugned. Tested by the standard set up by the Congress of the United States, it would be extremely doubtful if the pictures here challenged would be held obscene or indecent by any state of Federal court. It would be particularly unwise to sanction a different type of censorship in the Philippine than in the United States, or for that matter in the rest of the world. The pictures in question merely depict persons as they actually live, without attempted presentation of persons in unusual postures or dress. The aggregate judgment of the Philippine community, the moral sense of all

the people in the Philippines, would not be shocked by photographs of this type. The court is convinced that the post-card pictures in the present case cannot be characterized as offensive to chastity, or foul, or filthy.

2. MILLER VS. CALIFORNIA Facts: Miller conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. Five unsolicited advertising brochures were sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. After a jury trial, he was convicted of violating California Penal Code 311.2 (a), a misdemeanor, by knowingly distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Issue: Whether the determination of obscene materials are to be determined through the national or community standard. Held: Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. Thus, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. These specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. The inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike. Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently

offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility. Thus the Court herein (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," not "national standards."

3. SORIANO VS. LAGUARDIA Facts: On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made obscene remarks against INC. Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC), against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan.

Issue: Are Sorianos statements during the televised Ang Dating Daan part of the religious discourse and within the protection of Section 5, Art.III?

Held: No. Under the circumstances obtaining in this case, therefore, and considering the adverse effect of petitioners utterances on the viewers fundamental rights as well as petitioners clear violation of his duty as a public trustee, the MTRCB properly suspended him from appearing in Ang Dating Daan for three months. Furthermore, it cannot be properly asserted that petitioners suspension was an undue curtailment of his right to free speech either as a prior restraint or as a subsequent punishment. Aside from the reasons given above (re the paramountcy of viewers rights, the public trusteeship character of a broadcasters role and the power of the State to regulate broadcast media), a requirement that indecent language be avoided has its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.

4. FERNANDO VS. CA

Facts: Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police CIDG conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issuedSearch Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of the store for copies of New Rave, Hustler, IOU magazine, andVHS tapes. On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair. Thepolice searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines, which they deemed pornographic. All appellants pled not guilty to the offenses charged. They waived their right to present evidence. The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners Fernando and Estorninos. The CA affirmed the decision. The petitioners sought for review in the SC on certiorari and assailed the CA decision. They assigned the following errors: I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he was selling the said materials. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so. The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner Fernandos ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information. Issue: Whether the appellate court erred in affirming the petitioners conviction. Held: No. Petition dismissed. Ratio: As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials. Necessarily, that the confiscated materials are obscene must be proved. People v. Kottinger-.obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. Also, that which shocks the ordinary and common sense of men as an indecency. The disclaimer was whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it. Go Pin- If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for arts sake but rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures Padan- An actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land. Katigbak- the Court measures obscenity in terms of the dominant theme of the material taken as a whole rather than in isolated passages. Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene. Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and two-cents worths among judges as to what is obscene or what is art. The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that

individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases. There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to 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 offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is patently offensive. No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive hard core sexual conduct. Ihe offensive descriptions of sex acts. What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion. In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts. Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The mayors permit shows that Fernando was the owner of the store. Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was served

2. RIGHT TO ASSEMBLY AND PETITION 1. B.P. BLG 880 AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985." Section 2. Declaration of policy - The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. Section 3. Definition of terms - For purposes of this Act: (a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes. Section 4. Permit when required and when not required - A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly

established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a governmentowned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Section 5. Application requirements - All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the application within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory. (g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. Section 7. Use of public thoroughfare - Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Section 8. Responsibility of applicant - It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit; (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Section 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public

safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times. Section 10. Police assistance when requested - It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Section 11. Dispersal of public assembly with permit - No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended:

(e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal. Section 12. Dispersal of public assembly without permit - When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Section 13. Prohibited acts - The following shall constitute violations of this Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf. (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof; 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like; 2. the carrying of a bladed weapon and the like; 3 the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Section 14. Penalties - Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding Section shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years; (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Section 15. Freedom parks - Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act. Section 16. Constitutionality - Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Section 17. Repealing clause - All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly. Section 18. Effectivity - This Act shall take effect upon its approval. Approved, October 22, 1985.

2. J.B.L. REYES VS. BAGATSING Facts: Retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the City of Manila to hold a peaceful march and rally on 26 October 1983 from 2:00 to 5:00 p.m., starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. After the planned delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. An assurance was made to observe all the necessary steps "to ensure a peaceful march and rally." Since Reyes had not been informed of any action taken on his request on behalf of the organization to hold a rally, on 20 October 1983, he filed a suit for mandamus with alternative prayer for writ of preliminary mandatory injunction. The oral argument was heard on 25 October 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." Hence the detailed exposition of the Court's stand on the matter. Issue: Whether Reyes, et. al. can exercise their freedom of speech, press, or to assemble in front of the US embassy. Held: The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the

place where the peace rally would start. Neither can there be any valid objection to the use of the streets to the gates of the US Embassy, hardly two blocks away at the Roxas Boulevard. The novel aspect of the case is that there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. Related to this, the second paragraph of its Article 22 of the Vienna Convention on Diplomatic Relations (to which the Philippines is a signatory) reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity." That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance 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. Moreover, Ordinance 7295 of the City of Manila prohibits the holding or staging of rallies or demonstrations within a radius of 500 feet from any foreign mission or chancery; and for other purposes. Even then, if the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied, it does not follow that the Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated. The high estate accorded the rights to free speech and peaceable assembly demands nothing less.

3. BAYAN VS. ERMITA Facts: The petitioners, Bayan, et al., alleged that they are citizens and taxpayers of the Philippines and that their right as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa No. 880. Petitioners contended that Batas Pambansa No. 880 is clearly a violation of the 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 which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words lawful cause, opinion, protesting or influencing suggest the exposition of some cause not espoused by the government. Also, the phrase maximum tolerance shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test. This petition and two other petitions were ordered to be consolidated on February 14, 2006. During the course of oral arguments, the petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005. Issue: Whether the Calibrated Pre-emptive response and the Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12, 13(a) and 14(a) violates Art. III Sec. 4 of the Philippine Constitution as it causes a disturbing effect on the exercise by the people of the right to peaceably assemble. Held: Section 4 of Article III of the Philippine Constitution provides that 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. The right to peaceably assemble and petition for redress of grievances, together with freedom of speech, of expression, and of the press, is a right that enjoys dominance in the sphere of constitutional protection. For this rights represent the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. However, it must be remembered that the right, while sacrosanct, is not absolute. It may be regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign police power, which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety,

and general welfare of the people. B.P. No 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. B.P. No. 880 thus readily shows that 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. Neither the words opinion, protesting, and influencing in of grievances come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyist and is independent of the content of the expression in the rally. Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the rights even under the Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. Wherefore, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plaza in every city or municipality that has not yet complied with section 15 of the law. Furthermore, Calibrated pre-emptive response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance, The petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED

4. MALABANAN VS. RAMENTO Facts: Crispin Malabanan, Evilio Jalos, Ben Luther Lucas, Sotero Leonero and June Lee were officers of the Supreme Student Council of the Gregorio Araneta University Foundation. They sought and were granted by the school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M. on 27 August 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 9 September 1982, they were informed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by Malabanan, et. al. both before the Court of First Instance of Rizal in a petition for mandamus with damages against Cesar Mijares, in his capacity as the President of GAUF, Gonzalo del Rosario, in his capacity as the Director for Academic Affairs of GAUF; Tomas B. Mesina, in his capacity as the Dean of Student Affairs of GAUF; Atty. Leonardo Padilla, in his capacity as Chief Legal Counsel & Security Supervisor of GAUF; Atty. Fablita Ammay, Rosendo Galvante and Eugenia Tayao, in their capacities as members of the Ad Hoc Committee of GAUF and before the Ministry of Education, Culture, and Sports. On 20 October 1982, Anastacio D. Ramento, as Director of the National Capital Region, found Malabanan, et. al. guilty of the charge of having violated paragraph 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. Hence, the petition for certiorari, prohibition and mandamus. Issue: Whether the students were properly meted out a year suspension due to the disruption of classes in GAUF attended by the students concerted activity. Held: Malabanan, et.al. are entitled to their rights to peaceable assembly and free speech. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level, there is persuasive force to

this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." It does not follow, however, that Malabanan, et. al. can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the VMAS building of the University. Moreover, it was continued longer than the period allowed. The "concerted activity went on until 5:30 p.m." The University could thus, take disciplinary action. On those facts, however, an admonition, even a censure certainly not a suspension could be the appropriate penalty. A one-year period of suspension is much too severe, While the discretion of both the University and Director Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of proportionality between the offense committed and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question. To avoid this constitutional objection, it is the holding of the Court that a one-week suspension would be punishment enough.

5. IBP VS. ATIENZA Petitioners Integrated Bar of the Philippines[1] (IBP) and lawyers H. Harry L. Roque and Joel R. Butuyan appeal the June 28, 2006 Decision[2] and the October 26, 2006 Resolution[3] of the Court of Appeals that found no grave abuse of discretion on the part of respondent Jose Lito Atienza, the then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the IBP. On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter application[4] for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members, law students and multi-sectoral organizations. Respondent issued a permit[5] dated June 16, 2006 allowing the IBP to stage a rally on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received on June 19, 2006. Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari docketed as CA-G.R. SP No. 94949.[6] The petition having been unresolved within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which assailed the appellate courts inaction or refusal to resolve the petition within the period provided under the Public Assembly Act of 1985.[7] The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively, denied the petition for being moot and academic, denied the relief that the petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.

The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the peaceful conduct of the program. The MPD thereupon instituted on June 26, 2006 a criminal action,[8] docketed as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance, that the petition became moot and lacked merit. The appellate court also denied petitioners motion for reconsideration by the second assailed issuance. Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment of November 18, 2008which merited petitioners Reply of October 2, 2009. The main issue is whether the appellate court erred in holding that the modification of the venue in IBPs rally permit does not constitute grave abuse of discretion. Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act and violates their constitutional right to freedom of expression and public assembly.

The Court shall first resolve the preliminary issue of mootness. Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the passing of the date of the rally on June 22, 2006. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition, yet evading review.[9] In the present case, the question of the legality of a modification of a permit to rally will arise each time the terms of an intended rally are altered by the concerned official, yet it evades review, owing to the limited time in processing the application where the shortest allowable period is five days prior to the assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue at hand.

Respecting petitioners argument that the issues presented in CA-G.R. SP No. 94949 pose a prejudicial question to the criminal case against Cadiz, the Court finds it improper to resolve the same in the present case.

Under the Rules,[10] the existence of a prejudicial question is a ground in a petition to suspend proceedings in a criminal action. Since suspension of the proceedings in the criminal action may be made only upon petition and not at the instance of the judge or the investigating prosecutor,[11] the latter cannot take cognizance of a claim of prejudicial question without a petition to suspend being filed. Since a petition to suspend can be filed only in the criminal action,[12] the determination of the pendency of a prejudicial question should be made at the first instance in the criminal action, and not before this Court in an appeal from the civil action. In proceeding to resolve the petition on the merits, the appellate court found no grave abuse of discretion on the part of respondent because the Public Assembly Act does not categorically require respondent to specify in writing the imminent and grave danger of a substantive evil which warrants the denial or modification of the permit and merely mandates that the action taken shall be in writing and shall be served on respondent within 24 hours. The appellate court went on to hold that respondent is authorized to regulate the exercise of the freedom of expression and of public assembly which are not absolute, and that the challenged permit is consistent with Plaza Mirandas designation as a freedom park where protest rallies are allowed without permit. The Court finds for petitioners.

Section 6 of the Public Assembly Act reads: Section 6. Action to be taken on the application (a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the application [sic] within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory. (g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring supplied)

In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,[13] the Court reiterated: x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest.[14] (emphasis supplied)

The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the 1983 ruling inReyes v. Bagatsing.[15] In juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as follows: x x x [The public official concerned shall] appraise whether there may be valid objections to the grant of the permit or to its grant but at another public 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 an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.[16] (italics and underscoring supplied) In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of

the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit. Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which blank denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place.[17](emphasis and underscoring supplied)

Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. It is thus reversible error for the appellate court not to have
[18]

found provision, not to have

such grave abuse of discretion and, under specific statutory modified the permit in terms satisfactory to the applicant.

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 94949 areREVERSED. The Court DECLARES that respondent committed grave abuse of discretion in modifying the rally permit issued onJune 16, 2006 insofar as it altered the venue from Mendiola Bridge to Plaza Miranda.

SO ORDERED.