SULLIVAN VS.

NEW YORK TIMES

Brief Fact Summary. The Plaintiff, Sullivan (Plaintiff) sued the Defendant, the New York
Times Co. (Defendant), for printing an advertisement about the civil rights movement in
the
south
that
defamed
the
Plaintiff.
Synopsis of Rule of Law. The constitutional guarantees require a federal rule that
prohibits a public official from recovering damages for a defamatory falsehood relating
to his official conduct unless he proves that the statement was made with actual malice
that is, with knowledge that it was false or with reckless disregard of whether it was
false or not.

Facts. The Plaintiff was one of three Commissioners of Montgomery, Alabama, who
claimed that he was defamed in a full-page ad taken out in the New York Times. The
advertisement was entitled, Heed Their Rising Voices and it charged in part that an
unprecedented wave of terror had been directed against those who participated in the
civil rights movement in the South. Some of the particulars of the advertisement were
false. Although the advertisement did not mention the Plaintiff by name, he claimed that
it referred to him indirectly because he had oversight responsibility of the police. The
Defendant claimed that it authorized publication of the advertisement because it did not
have any reason to believe that its contents were false. There was no independent effort
to check its accuracy. The Plaintiff demanded that the Defendant retract the
advertisement. The Defendant was puzzled as to why the Plaintiff thought the
advertisement reflected adversely on him. The jury found the ad libe
lous per se and actionable without proof of malice. The jury awarded the Plaintiff
$500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed.
Issue. Is the Defendant liable for defamation for printing an advertisement, which
criticized a public officials official conduct?
Held. No.
Reversed
and
remanded.
* Safeguards for freedom of speech and of the press are required by the First and
Fourteenth Amendments of the United States Constitution (Constitution) in a libel action
brought by a public official against critics of his official conduct.
* Under Alabama law, a publication is libelous per se if the words tend to injure a person
in his reputation or to bring him into public contempt. The jury must find that the words
were published of and concerning the plaintiff. Once libel per se has been established,
the defendant has no defense as to stated facts unless he can persuade the jury that

they
were
true
in
all
their
particulars.
* Erroneous statement is inevitable in free debate and it must be protected if the
freedoms of expression are to have the breathing space that the need to survive.
* The constitutional guarantees require a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with actual malice that is, with knowledge that it
was false or with reckless disregard of whether it was false or not.
* The Supreme Court of the United States (Supreme Court) holds that the Constitution
delimits a States power to award damages for libel in actions brought by public officials
against critics of their official conduct. In this case, the rule requiring proof of actual
malice
is
applicable.
* The Defendants failure to retract the advertisement upon the Plaintiffs demand is not
adequate evidence of malice for constitutional purposes. Likewise, it is not adequate
evidence of malice that the Defendant failed to check the advertisements accuracy
against the news stories in the Defendants own files. Also, the evidence was
constitutionally defective in another respect: it was incapable of supporting the jurys
finding that the allegedly libelous statements were made of and concerning the Plaintiff.
Concurrence. Justice Hugo Black (J. Black) argued that the First and Fourteenth
Amendments of the Constitution do not merely delimit a States power to award
damages, but completely prohibit a State from exercising such a power. The Defendant
had an absolute, unconditional right to publish criticisms of the Montgomery agencies
and officials.

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

U.S. v Bustos G.R. No. L-12592 March 8, 1918

J. Malcolm
Facts:
In 1915, 34 Pampanga residents signed a petition to the Executive Secretary regarding charges
against Roman Punsalan, the justice of the peace of Macabebe. They wanted to oust him from his
office.

Specific allegations against him included bribery charges, involuntary servitude, and theft.
The justice denied the charges. In the CFI, not all the charges were proved. But, the judge still found
him guilty.
Punsalan filed charges alleging that he was the victim of prosecution and one Jaime, an auxiliary
justice, instigated the charges against him for personal reasons. He was acquitted.
The complainants filed an appeal to the Governor General but it wasnt acted upon.
Criminal action was instituted aganst the residents by Punsalan.
The CFI found almost all of the 34 defendants guilty and sentenced them to pay 10 pesos or suffer
imprisonment in case of insolvency.
The defendants filed a motion for a retrial to retire the objection made by Punsalan. The trial court
denied the motion. All except 2 of the defendants appealed. Making assignments of error.
1. The court erred in overruling motion for retrial.
2. Error in not holding that the libelous statement was not privileged
3. Error in not acquitting defendants
4. Evidence failed to show gult of defendants beyond reasonable doubt.
5. Erred in making defendants prove that the libelous statements were true.
6. Error in sustaining the prosecutions objection to the introduction in evidence by the accused of
the affidavits upon which the petition forming the basis of the libelous charge was based.
7. Erred in refusing to permit the defendants to retire the objection in advertently interposed by their
counsel to the admission in evidence of the expediente administrativo out of which the accusation in
this case arose.
Issue:
Whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice of the
peace in Pampanga.
Held: Yes. Defendants acquitted.
Ratio:
Freedom of speech was non existent in the country before 1900. There were small efforts at reform
made by the La Solidaridad. The Malolos Constitution, on the other hand, guaranteed freedom of
speech.
During the U.S. period, President McKinley himself laid down the tenet Magna Charta of Philippine
Liberty when he wrote, that no law shall be passed abridging the freedom of speech or of the press
or of the rights of the people to peaceably assemble and petition the Government for a redress of
grievances." This was in the Philippine Bill.
In the Amrican cases it was held, there were references to public opinion should be the constant
source of liberty and democracy. It also said the guaranties of a free speech and a free press
include the right to criticize judicial conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment.
If the people cannot criticize a justice of the peace or a judge the same as any other public officer,
public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the
judiciary would be tyranny of the basest sort.

It is a duty which every one owes to society or to the State to assist in the investigation of any
alleged misconduct. It is further the duty of all who know of any official dereliction on the part of a
magistrate or the wrongful act of any public officer to bring the facts to the notice of those whose
duty it is to inquire into and punish them.
The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. Petition means that any person or group of
persons can apply, without fear of penalty, to the appropriate branch or office of the government for a
redress of grievances. The persons assembling and petitioning must, of course, assume
responsibility for the charges made.
Public policy has demanded protection for public opinion. The doctrine of privilege has been the
result of this. Privilged communications may in some instances afford an immunity to the slanderer.
Public policy is the unfettered administration of justice.
Privilege is either absolute or qualified. Qualified privilege is prima facie which may be lost by proof
of malice. This is apparent in complaints made in good faith against a public officials conduct having
a duty in the matter. Even if the statements were found to be false, the protection of privilege may
cover the individual given that it was in good faith. There must be a sense of duty and not a selfseeking motive.
A communication made bona fide upon any subject-matter in which the party communicating has an
interest, or in reference to which has a duty, is privileged, if made to a person having a
corresponding interest or duty, although it contained criminatory matter which without this privilege
would be slanderous and actionable.
In the usual case malice can be presumed from defamatory words. Privilege destroys that
presumption. The onus of proving malice then lies on the plaintiff. The plaintiff must bring home to
the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence
of probable cause will amount to proof of malice.
It is true that the particular words set out in the information, if said of a private person, might well be
considered libelous per se. The charges might also under certain conceivable conditions convict one
of a libel of a government official. As a general rule words imputing to a judge or a justice of the
peace dishonesty or corruption or incapacity or misconduct touching him in his office are actionable.
But as suggested in the beginning we do not have present a simple case of direct and vicious
accusations published in the press, but of charges predicated on affidavits made to the proper official
and thus qualifiedly privileged. Express malice has not been proved by the prosecution. Further,
although the charges are probably not true as to the justice of the peace, they were believed to be
true by the petitioners. Good faith surrounded their action. Probable cause for them to think that
malfeasance or misfeasance in office existed is apparent. The ends and the motives of these
citizens to secure the removal from office of a person thought to be venal were justifiable. In no
way did they abuse the privilege. These respectable citizens did not eagerly seize on a frivolous
matter but on instances which not only seemed to them of a grave character, but which were
sufficient in an investigation by a judge of first instance to convince him of their seriousness. No
undue publicity was given to the petition. The manner of commenting on the conduct of the justice of
the peace was proper.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA
SERVICES, INC.,petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE
CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE
JUDGE ADVOCATE GENERAL, ET AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo,
Jejomar Binay and Rene Saguisag for petitioners.
The Solicitor General for respondents.

ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784
Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan
Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and
distribution of the said newspapers, as well as numerous papers, documents, books and other
written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publishereditor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for
the return of the seized articles, and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City,
their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined
from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other
accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People
v. Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea
for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset
to July 7, 1983, on motion of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of
preliminary mandatory injunction, manifested that respondents "will not use the aforementioned

articles as evidence in the aforementioned case until final resolution of the legality of the seizure of
the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction
was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that petitioners had come to
this Court without having previously sought the quashal of the search warrants before respondent
judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should
have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the
constitutional issues raised not to mention the public interest generated by the search of the "We Forum"
offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence
of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the
words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is
always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from
its operation, whenever the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid
on the fact that while said search warrants were issued on December 7, 1982, the instant petition
impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six
[6] months.
Laches is failure or negligence for an unreasonable and unexplained length of time to do that which,
by exercising due diligence, could or should have been done earlier. It is negligence or omission to
assert a right within a reasonable time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition
thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation]
with the fact that the Petition was filed on June 16, 1983, more than half a year after
the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had waited this
long to bring their case to court, it was because they tried at first to exhaust other
remedies. The events of the past eleven fill years had taught them that everything in
this country, from release of public funds to release of detained persons from
custody, has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close to the
President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel
Antonio Coronet asking the return at least of the printing equipment and vehicles.
And after such a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security Command, they were
further encouraged to hope that the latter would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to Court.
[pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no
ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts
exerted by petitioners quite evidently negate the presumption that they had abandoned their right to
the possession of the seized property, thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as
evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from
challenging the validity of the search warrants. We do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with
them, within legal bounds. The fact that he has used them as evidence does not and cannot in any
way affect the validity or invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or
affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during the hearing on August 9,
1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his
witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19,
Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City,
respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one place where petitioner Jose
Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3,
Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:
Which have been used, and are being used as instruments and means of committing
the crime of subversion penalized under P.D. 885 as amended and he is keeping and
concealing the same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a typographical error. Precisely, two search warrants were
applied for and issued because the purpose and intent were to search two distinct premises. It would
be quite absurd and illogical for respondent judge to have issued two warrants intended for one and
the same place. Besides, the addresses of the places sought to be searched were specifically set
forth in the application, and since it was Col. Abadilla himself who headed the team which executed
the search warrants, the ambiguity that might have arisen by reason of the typographical error is
more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was
applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address
appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that
respondent judge had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to be searched with
sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place
intended in the warrant is relevant. This would seem to be especially true where the executing officer
is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who

issued the warrant intended the building described in the affidavit, And it has also been said that the
executing officer may look to the affidavit in the official court file to resolve an ambiguity in the
warrant as to the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that although the warrants
were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos,
Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized
under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A search warrant may be issued for the
search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the
offense; and
[c] Property used or intended to be used as the means of committing
an offense.
The above rule does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen
property. Necessarily, stolen property must be owned by one other than the person in whose
possession it may be at the time of the search and seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person against whom the warrant is directed has control or
possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in
relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed
warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables,
instruments or implements intended by the owner of the tenement for an industry or works which
may be carried on in a building or on a piece of land and which tend directly to meet the needs of the
said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where
this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes
immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a
tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the
agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the
machineries were placed. This being the case, the machineries in question, while in fact bolted to
the ground remain movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by
the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security
Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on
December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have
provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue
in accordance with Section 3, Article IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts
and circumstances which would lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in connection with the offense are in the
place sought to be searched. And when the search warrant applied for is directed against a
newspaper publisher or editor in connection with the publication of subversive materials, as in the
case at bar, the application and/or its supporting affidavits must contain a specification, stating with
particularity the alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner
"is in possession or has in his control printing equipment and other paraphernalia, news publications
and other documents which were used and are all continuously being used as a means of
committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is
a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the
existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in
the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and
collated by our unit clearly shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive activities in conspiracy
with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement,
Movement for Free Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be determined by the
judge, ... after examination under oath or affirmation of the complainant and the witnesses he may
produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the
issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to
the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause."
As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this
Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is
that they are in the nature of general warrants. The search warrants describe the articles sought to
be seized in this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters,
cabinets, tables, communications/recording equipment, tape recorders, dictaphone
and the like used and/or connected in the printing of the "WE FORUM" newspaper
and any and all documents communication, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to

promote the objectives and piurposes of the subversive organization known as
Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with
marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts,
lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the
U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703
or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which
could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a
general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be
characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the
era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown
were given roving commissions to search where they pleased in order to suppress and destroy the
literature of dissent both Catholic and Puritan Reference herein to such historical episode would not
be relevant for it is not the policy of our government to suppress any newspaper or publication that
speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security.
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and publication of
said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they
have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural or artificial, engaged in
subversive activities against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary of National Defense." It
is doubtful however, if sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than
President Marcos himself denied the request of the military authorities to sequester the property
seized from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for sequestration of
the WE FORUM newspaper and its printing presses, according to Information
Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum offices in
Quezon City and took a detailed inventory of the equipment and all materials in the
premises.
Cendaa said that because of the denial the newspaper and its equipment remain at
the disposal of the owners, subject to the discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is further confirmed by the
reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S.
Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM
" case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of our
authorities to close the paper's printing facilities and confiscate the equipment and
materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent
judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The
prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all
articles seized thereunder are hereby ordered released to petitioners. No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-69500 July 22, 1985
JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA,
and DULCE Q. SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE
BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.
The Solicitor General for respondents.

FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a
persuasive ring to the invocation of the constitutional right to freedom of expression 1 of an artistand
for that matter a man of letters tooas the basis for a ruling on the scope of the power of respondent
Board of Review for Motion Pictures and Television and how it should be exercised. The dispute between
the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For
Adults Only." There is the further issue then, also one of first impression, as to the proper test of what
constitutes obscenity in view of the objections raised. Thus the relevance of this constitutional command:
"Arts and letters shall be under the patronage of the State. 2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie
production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The
respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its
Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the
film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions
enumerated was granted. A motion for reconsideration was filed by petitioners stating that the
classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984,
respondent 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 Withheld
the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading
submitted on January 21, 1985, as one of its special and affirmative defenses, it was alleged that the
petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one
immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut
[thus an] adjudication of the questions presented above would be academic on the case." 6 Further:
"The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does
not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part
of the Board's action are the deletions ordered in the film. 7 The prayer was for the dismissal of the
petition.
An amended petition was then filed on January 25, 1985. The main objection was the classification
of the film as "For Adults Only." For petitioners, such classification "is without legal and factual basis
and is exercised as impermissible restraint of artistic expression. The film is an integral whole and all
its portions, including those to which the Board now offers belated objection, are essential for the
integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced
by the Board as basis for its classification. 8 There was an answer to the amended petition filed on
February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered
by the Board as well as the statutory provisions for review of films and as to the requirement to submit the
master negative have been all rendered moot. It was also submitted that the standard of the law for
classifying films afford a practical and determinative yardstick for the exercise of judgment. For
respondents, the question of the sufficiency of the standards remains the only question at issue.

It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of
standards to guide respondent Board in the exercise of its power. Even if such were the case, there
is justification for an inquiry into the controlling standard to warrant the classification of "For Adults
Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the
freedom of artistic and literary expression embraced in the free speech and free press guarantees of
the Constitution.
1. 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. Nor as pointed out
in Burstyn v. Wilson 9 is 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. 10 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. Our recent decision in Reyes v. Bagatsing 11 cautions against such a
move. Press freedom, as stated in the opinion of the Court, "may be Identified with the liberty to discuss
publicly and truthfully any matter of public concern without censorship or punishment. 12 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. 13
2. 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. Nonetheless, for the purposes of this litigation, the
emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled
principle in our jurisdiction. As early as 1909, in the case ofUnited States v. Sedano, 14 a prosecution
for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in
the right to print what one chooses without any previous license. There is reaffirmation of such a view
in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving
due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile
units equipped with sound systems and loud speakers was considered an abridgment of the right of the
freedom of expression amounting as it does to censorship. It is the opinion of this Court, therefore, that to
avoid an unconstitutional taint on its creation, the power of respondent 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. 16
3. The test, to repeat, to determine whether freedom of excession 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 require of its being well-nigh inevitable. The
basic postulate, wherefore, as noted earlier, 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
public morals, public health or any other legitimate public interest. 17 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. 18

4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan
in Roth v. United States 19 speaking of the free speech and press guarantee of the United States
Constitution: "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 the First Amendment is
the rejection of obscenity as utterly without redeeming social importance. 20 Such a view commends itself
for approval.
5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the
approach followed in Roth: "The early leading standard of obscenity allowed material to be judged
merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v.
Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have
rejected it and substituted this test: whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a whole appeals to prurient
interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most
susceptible persons, might well encompass material legitimately treating with sex, and so it must be
rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the
substituted standard provides safeguards adequate to withstand the charge of constitutional
infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any
impermissible infringement on the freedom of artistic expression calls to mind the landmark ponencia
of Justice Malcolm inUnited States v. Bustos, 22 decided in 1918. While recognizing the principle that
libel is beyond the pale of constitutional protection, it left no doubt that in determining what constitutes
such an offense, a court should ever be mindful that no violation of the right to freedom of expression is
allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v.
Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize
that "sex and obscenity are not synonymous. 24 Further: "Obscene material is material which deals with
sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific
works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech
and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of
absorbing interest to mankind through the ages; it is one of the vital problems of human interest and
public concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to respondent Board
"applying contemporary Filipino cultural values as standard, 26 words which can be construed in an
analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be
stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That is a
constitutional mandate. It will be less than true to its function if any government office or agency would
invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or
for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that
art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen
or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent
rightfully may be considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the
widest scope of freedom is to be given to the adventurous and imaginative exercise of the human
spirit" 28 in this sensitive area of a man's personality. On the question of obscenity, therefore, and in the
light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in
such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent
decision 29citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a

fundamental, and a universal role of construction, applied when considering constitutional questions, that
when a law is susceptible of two constructions' one of which will maintain and the other destroy it, the
courts will always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency
of the controlling standard and its conformity to what the Constitution ordains.

9. This being a certiorari petition, the question before the Court is whether or not there was a grave
abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light
of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For
Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity
appears to be unduly restrictive. This Court concludes then 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. This conclusion finds support in this explanation of respondents
in its Answer to the amended petition: "The adult classification given the film serves 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." 32 Further: "Respondents further stated in its answer that petitioner company has an option to
have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and
pare down the violence in the film." 33 Petitioners, however, refused the "For Adults Only" classification
and instead, as noted at the outset, filed this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable
to motion pictures. It is the consensus of this Court that where television is concerned: a less liberal
approach calls for observance. This is so because unlike motion pictures where the patrons have to
pay their way, television reaches every home where there is a set. Children then will likely will be
among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals
Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult
population. 34 it cannot be denied though that the State as parens patriae is called upon to manifest an
attitude of caring for the welfare of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses
this petition for certiorari solely on the ground that there are not enough votes for a ruling that there
was a grave abuse of discretion in the classification of Kapit sa Patalim as "For-Adults-Only."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.:

+.wph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate
the boundaries of the protected area of the cognate rights to free speech and peaceable
assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired
Justice JB 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 October 26, 1983 from 2:00 to 5:00 in the afternoon, 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. 2 During the course of the oral
argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution
adopted on the last day by the International Conference for General Disbarmament, 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.
There was likewise an assurance in the petition that in the exercise of the constitutional rights to free
speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and
rally." 4
The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory
injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been
informed of any action taken on his request on behalf of the organization to hold a rally. On October
25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General
Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was
unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due
to police intelligence reports which strongly militate against the advisability of issuing such permit at this
time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence
reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested,
however, in accordance with the recommendation of the police authorities, that "a permit may be issued
for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the
participants themselves and the general public may be ensured." 8
The oral argument was heard on October 25, 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.
On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground
that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the
City of Manila. The last sentence of such minute resolution reads: "This resolution is without
prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the
matter.
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free
speech and peaceful assembly, arising from the denial of a permit. 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." 10 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. 11 There is to be then no previous restraint on the communication of
views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for
damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil
that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet
peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the
utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the
case with freedom of expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements the right of free speech. 19 To
paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court
Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the
press were toupled in a single guarantee with the and to petition 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. the every case, therefo re 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. 21
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better
expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to
the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and become part of an
instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was
rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of
opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means
may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than
just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are.
Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to
ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the
cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to
force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As
pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is
rather to be expected that more or less disorder will mark the public assembly of the people to protest
against grievances whether real or imaginary, because on such occasions feeling is always wrought to a
high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect,
as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of
vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to
make a mockery of the high estate occupied by intellectual liberty in our scheme of values.

3. 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. The
Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice
Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such use of the
streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of regulation, be abridged or
denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit
what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically
affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract
that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there
can be no valid reason why a permit should not be granted for the or oposed march and rally starting from
a public dark that is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy,
hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt
on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds
support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that
case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or
procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor
shall first be explained from the selectmen of the town or from licensing committee,' was construed
by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered
discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States,
in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme
Court, held that 'a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the statute is construed by the
state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession, with a view to conserving
the public convenience and of affording an opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief
Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the
Constitution, imply the existence of an organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose
regulations in order to assure the safety and convenience of the people in the use of public highways has
never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the
good order upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of highways in that
relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by
the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted,
would have arisen. So, too, if the march would end at another park. As previously mentioned though,
there would be a short program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based

on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a
signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the
President on October 11, 1965, and was thereafter deposited with the Secretary General of the
United Nations on November 15. As of that date then, it was binding on the Philippines. The second
paragraph of the Article 22 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. " 32 The Constitution "adopts the
generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the
Vienna Convention is a restatement of the generally accepted principles of international law, it should be
a part of the law of the land. 34 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, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or
staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. Unless 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. Even if shown then to be applicable, that question the confronts
this Court.
6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment
must be confined within the limits of previous decisions. The law declared on past occasions is, on
the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing,
October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing
the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the
absence of a clear and present danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of tree speech and
peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of
Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the
International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military
Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as
to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for
the permit, whether an individual or a group. If it were, then the freedom of access becomes
discriminatory access, giving rise to an equal protection question. The principle under American doctrines
was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech
and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held
but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful
character. Even then, only the guilty parties should be held accountable. 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." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa
ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a

permit should recognize the right of the applicants to hold their assembly at a public place of their choice,
another place may be designated by the licensing authority if it be shown that there is a clear and present
danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions,
this Court was persuaded that the clear and present danger test was satisfied. The present situation is
quite different. Hence the decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in
this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District,
Metropolitan Police Force, that the police force is in a position to cope with such emergency should it
arise That is to comply with its duty to extend protection to the participants of such peaceable assembly.
Also from him came the commendable admission that there were the least five previous demonstrations
at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward
event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the
United States Mission in the Philippines would take place and that, as mentioned at the outset of this
opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant
Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a
provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert
to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in
Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those
exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official concerned to 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, then, can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme
of constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than
on the other departments rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative
of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on
the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that
there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro
tantomodified. So it was made clear in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500)
feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds
support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. 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
respondent 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,
Should it come, then the qualification and observation of Justices Makasiar and Plana certainly

cannot be summarily brushed aside. The high estate accorded the rights to free speech and
peaceable assembly demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of
the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in
this case, the proposed march and rally being scheduled for the next day after the hearing, this
Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of
October 25, 1983. It may be noted that the peaceful character of the peace march and rally on
October 26 was not marred by any untoward incident. So it has been in other assemblies held
elsewhere. It is quite reassuring such that both on the part of the national government and the
citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs

Reyes v Bagatsing 125 SCRA 553 (1983)

Facts: Petitioner sought a permit from the City of Manila to hold a peaceful march and rally on
October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta to the gates of the
United States Embassy. Once there, and in an open space of public property, a short program
would be held. The march would be attended by the local and foreign participants of such
conference. That would be followed by the handing over of a petition based on the resolution
adopted at the closing session of the Anti-Bases Coalition. There was likewise an assurance in
the petition that in the exercise of the constitutional rights to free speech and assembly, all the
necessary steps would be taken by it "to ensure a peaceful march and rally. However the request
was denied. Reference was made to persistent intelligence reports affirming the plans of
subversive/criminal elements to infiltrate or disrupt any assembly or congregations where a
large number of people is expected to attend. Respondent suggested that a permit may be issued
if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the
participants themselves and the general public may be ensured. An oral argument was heard
and the mandatory injunction was granted 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. However Justice Aquino dissented that the rally is violative of Ordinance No. 7295 of the
City of Manila prohibiting the holding of rallies within a radius of five hundred (500) feet from
any foreign mission or chancery and for other purposes. Hence the Court resolves.

Issue: Whether or Not the freedom of expression and the right to peaceably assemble violated.
Held: Yes. The invocation of the right to freedom of peaceable assembly carries with it the
implication that the right to free speech has likewise been disregarded. It is settled law that as to
public places, especially so as to parks and streets, there is freedom of access. Nor is their use
dependent on who is the applicant for the permit, whether an individual or a group. 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. Time immemorial Luneta
has been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.

Such use of the public places has from ancient times, been a part of the privileges, immunities,
rights, and liberties of citizens.
With regard to the ordinance, there was no showing that there was violation and even if it could
be shown that such a condition is satisfied it does not follow that respondent could legally act
the way he did. The validity of his denial of the permit sought could still be challenged.
A summary of the application for permit for rally: The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public place where and the time
when it will take place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should be filed well ahead in time to
enable the public official concerned to 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. Notice is given to applicants for the denial.