FREEDOM OF EXPRESSION

(LIBERTAS LOQUENDI)
Definition
Freedom of Speech
Wendell Philips: at once the instrument and the guaranty and the bright
consummate flower of all liberty.
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This definition covers freedom of expression in general, which embraces a

number of cognate rights all aimed at insuring the free and effective
communication of ideas from mind to mind.
The other rights, in addition to freedom of speech, are freedom of the press,
freedom of assembly, freedom of petition, freedom of religion, the right of
association, the right to access to information on matters of public concern, and
the right not to be detained solely by reason of ones political beliefs and
aspirations.

Importance
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This is the first right that is always curtailed when a free society falls under a
repressive regime.
As an individual particle of sovereignty, every citizen has a right to offer his views
and suggestions in the discussion of the common problems of the community or
the nation.
Diocese of Bacolod vs. COMELEC: According to the Supreme Court, there are
several theories and school of thought that strengthen the need to protect the
basic right to freedom of expression.
o (1) pertains to what is referred to as deliberative democracy: which would
include the right of the people to participate in public affairs, including the
right to criticize government actions.
o (2) considers free speech as being under the concept of a market place
of ideas, and should therefore be encouraged.
o (3) provides that free speech likewise involves self-expression that
enhances human dignity. This right is a means of assuring individual selffulfillment.
o (4) considers free expression as a marker for group identity
o (5) the Bill of Rights, for free speech included, is supposed to protect
individuals and minorities against majoritarian abuses perpetrated through
the framework of democratic governance.
o (6) free speech must be protected under the safety valve theory. This
provides that nonviolent manifestations of dissent reduce the likelihood of
violence.

- Free speech must be protected as a peaceful means of achieving ones

goal, considering the possibility that repression of nonviolent dissent may spill
over to violent means just to drive a point.
Modes of Expression
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Usually exercised through language, oral or written

Symbolisms may also be used, like the clenched fist, the bended knee, the salute
to the flag, the flag itself, the mace of the legislature, the picket line, caricatures
and cartoons. Wordless, they articulate.
o Speech: not limited to vocal communication. Conduct is treated as a form
of speech sometimes referred to as symbolic speech such that when
speech and nonspeech elements are combined in the same course of
conduct, the communicative element of the conduct may be sufficient to
bring into play the right to freedom of expression.
o Supreme Court stressed in this case that the form of expression is just as
important as the information conveyed that it forms part of the expression.

Elements
The basic constitutional provision is Article 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.
Supporting this provision, the Bill of Rights also contains in Section 18(1) the following
new rule:
No person shall be detained solely by reason of his political beliefs and
aspirations.
The elements of freedom of expression:
(1) Freedom from previous restraint or censorship
(2) Freedom from subsequent punishment
Restraint upon these freedoms may either content-based or content-neutral.
Content-based regulation or censorship: if the restriction is based on the subject
matter of the utterance or speech.
Content-neutral regulation: if it is merely concerned with the incidents of the speech,
or one that merely controls the time, place or manner, and under well-defined
standards.
(1) Freedom from Censorship

- Censorship conditions the exercise of freedom of expression upon the prior approval
of the government.
- Only those ideas acceptable to it are allowed to be disseminated; all others are
restricted or suppressed.
Iglesia ni Cristo vs. Court of Appeals
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2 basic issues were raised: (1) whether the MTRCB had the power to review
the petitioners programs and clear them for showing on television and, assuming
it had, (2) whether it gravely abused its discretion in prohibiting their exhibition as
x-rated material.
Petitioner has a television program entitled "Ang Iglesia ni Cristo. The program
presents and propagates petitioner's religious beliefs, doctrines and practices
often times in comparative studies with other religions. The Iglesia ni Cristo
insists on the literal translation of the bible and says that our (Catholic)
veneration of the Virgin Mary is not to be condoned because nowhere it is found
in the bible.
Petitioner submitted to the respondent Board of Review for Moving Pictures and
Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128.
The Board classified the series as "X" or not for public viewing on the ground that
they "offend and constitute an attack against other religions which is expressly
prohibited by law." The Board contended that it attacks certain doctrines and
practices of the Catholic and Protestant religions.
RTC ruled in favor of petitioners. CA however reversed it prompting the INC to go
to the Supreme Court.
The Court found that it should not have banned the telecast of the programs
because they did not attack but merely criticized the other religions in the
exercise by the INC of its freedom of expression and religion. The criticisms did
not create a clear and present danger requiring the prior restraint of the State.

Primicias vs. Fugoso

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The Coalesced Minority Party applied for a permit for the holding of a public
meeting at Plaza Miranda for the purpose of petitioning the government for
redress to grievances.
However, the Mayor of the City of Manila (Valeriano Fugoso) did not issue the
permit.
The Supreme Court ordered the permit issued, holding that the respondent could
only reasonably regulate, not absolutely prohibit, the use of public places for the
purpose indicated. It means that the Mayor does not have the power to refuse to
grant the permit, but only the discretion, in issuing the permit, to determine or
specify the streets or public places where the parade or procession may pass or
the meeting be held.

(2) Freedom from Punishment

- Freedom of expression is not absolute. Like all rights, it is subject to the police power
and may be properly regulated in the interest of the public.
- It does not cover ideas offensive to public order or decency or the reputation of
persons, which are all entitled to protection by the State.
- Thus, the lewd word, the obscene word, the seditious word, the slanderous word,
will not enjoy I mmunity from prohibition and punishment.

Three Major Criteria to Determine the Liability of the Individual for Ideas
Expressed by him:
(a) The Clear and Present Danger Rule
(b) The Dangerous Tendency Doctrine
(c) The Balancing Test
A. The Clear and Present Danger Rule
- the most libertarian of the tests
- formulated by 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 the State has a right to prevent. If they do,
the speaker shall be punished; otherwise, not. It is a question of proximity and degree.
The character of every act depends upon the circumstances in which it is done. The
most stringent protection of free speech would not protect a man in falsely shouting
Fire, fire in a crowded theatre and causing a panic.
- This test was first applied in the Primicias Case, where the respondent Mayor sought
to defend his refusal to allow the Nacionalista Party to hold a meeting at Plaza Miranda,
by what he called a reasonable ground to believe, basing upon previous utterances
and upon the fact that passions, especially on the part of the losing groups, remain
bitter and high, that similar speeches will be delivered tending to undermine the faith
and confidence of the people in their government, and in the duly constituted
authorities, which might threaten breaches of the peace and a disruption of public
order. The Supreme Court rejected this argument, noting that the condition of Manila at
that time did not justify the mayors fears.
- Reyes vs. Bagatsing: This was a petition filed by Justice JBL Reyes on behalf of the
Anti-Bases Coalition to compel the issuance of a permit for a rally to be held at the
Luneta and a subsequent march to the U.S. Embassy on Roxas Boulevard. The petition

had been rejected. The reason for the denial of the permit was the mayors fear that the
assemblage might be infiltrated by subversive elements to the prejudice of the public
order; hence his suggestion that the rally be held at an enclosed place like the Rizal
Coliseum for better security. Chief Justice Fernando held that the denial of the permit
was invalid as there was no showing of the probability (not mere possibility) of a clear
and present danger that might arise as a result of the meeting.
B. The Dangerous Tendency Doctrine
- This test was a highly unacceptable criterion.
- Under this test, a person could be punished for his ideas even if they only tended to
create the evil sought to be prevented. It was not necessary to actually create the evil; a
mere tendency toward the evil was enough.
- People vs. Perez: In convicting the accused, the Supreme Court declared that Perez
has uttered seditious words. He has made a statement and done an act which tended to
instigate others to meet together for unlawful purposes; which suggested and incited
rebellious conspiracies; which tended to stir up the people against the lawful authorities;
which tended to disturb the peace of the community and the safety or order of the
government. The remark complained of made by Perez in the course of a conversation
at a casual meeting with another person was: The Filipinos like myself must use bolos
for cutting off Governor-General Woods head for having recommended a bad thing for
the Filipinos, for he has killed our independence. Perez was sentenced to jail.
C. The Balance-of-Interest Test
- Balancing Test: When particular conduct is regulated in the interest of public order, and
the regulation results in an indirect, conditional, partial abridgment of speech, the duty of
the courts is to determine which of the two conflicting interests demands the greater
protection under the particular circumstances presented.
- The flaw in this method: it in effect allows the courts to decide that this freedom may
not be enforced unless they believe it is reasonable to do so (Justice Black).

Criticism of Official Conduct

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According to Justice Malcolm, the interest of society and the maintenance of

good government demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust accusation; the wound may be
relieved by the balm of a clear conscience. A public official must not be too tinskinned with reference to comment upon his official acts.

Right of assembly and Right of petition

- Right of assembly means the right on the part of the citizens to meet for consultation
in respect to public affairs. The right of assembly is important to freedom of expression
because public issues are better resolved after an exchange of views among citizens
meeting with each other for the purpose. The public meeting is an effective forum for the
ventilation of ideas affecting the common welfare.
- Like other rights embraced in freedom of expression, the right to assemble is not
subject to restraint or censorship. Hence, it may not be conditioned upon the prior
issuance of a permit or authorization from the government authorities. It should be
noted however, that if the assembly is intended to be held in a public place, a permit for
the use of such place, and not for the assembly itself, may be validly required.
Primicias vs. Fugoso
- The power of the local government officials is only one of regulation and not
prohibition. This means that they cannot altogether bar the use of public places
for lawful assemblies; the most they can do is indicate the time and conditions for
their use.
De la Cruz vs Ella
- The power given under the case of Primicias vs Fugoso was expanded when
the supreme court upheld a municipal mayor who, when asked to issue a permit
for the use of a particular part of a public plaza, designated another part on the
ground that the place requested might lead to disruption of the rites that might be
held in a nearby church.
- The Navarro case extended the power even further, for here the mayor was sustained
when he denied the use of Plaza Miranda by the student activists, suggesting that their
rally be held at the Sunken Gardens, a less sensitive area in the city.
- Under settled jurisprudence, the clear and present danger principle does not preclude
the Supreme Court from regulating the time, place and manner of the holding of a
peaceable assembly. It is the content of the speeches therein made that enjoys the
widest immunity.

Public Assembly Act

- Under the Public Assembly Act, a permit for the holding of a public assembly shall not
be necessary where the meeting is to be held in a private place, in the campus of a
government-owned and operated educational institution, or in a freedom park
- Where a permit is required, the written application therefore shall be filed with the
mayors office at least five days before the scheduled meeting and shall be acted upon
within two days. Otherwise, the permit shall be deemed granted. Denial may be justified
only upon clear and convincing evidence that the public assembly will create a clear and
present danger to the public order, safety, convenience, morals or health. Action on the
application shall be communicated within twenty-four hours to the applicant, who may
appeal the same to the appropriate court. Decision must be reached within twenty-four
hours.
- The law prohibits law-enforcement agencies from interfering with lawful assembly, but
permits them to detail a contingent under a responsible commander at least one
hundred meters away from the assembly in case it becomes necessary to maintain
order.
Bayan v. Ermita
- The law is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place, and manner of the assemblies. It regulates the
exercise of the right to peaceful assembly and petition only to the extent needed
to avoid a clear and present danger of the substantive evils congress has the
right to prevent.
TEST
Purpose test
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The purpose of the meeting.

Ideally, the test of lawful assembly should be the purpose for which it is held,
regardless of the auspices under which it is organized; not as to the relations of the
speakers, but whether their utterances transcend the bounds of the freedom of speech
which the constitution protects.
Auspices test
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Relations of the speaker

Evangelista vs Earnshaw
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The mayor of manila had prohibited the members of the communist party
from holding any kind of meeting, revoking for this purpose all permits
previously granted by him, particularly on the ground that the said party had
been found to be an illegal association.
Even if the organizers of the meeting be unquestionably lawful, the assembly
will still be illegal if its objective is, for example, to incite to sedition or
rebellion.

Non vs. Dames

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The protection to the cognate rights of speech and assembly guaranteed by

the constitution is similarly available to students is well settled in our
jurisdiction. However there are limitations. The permissible limitation on
student exercise of constitutional rights within the school presupposes that
conducts by the student, in class or out of it, which for any reason whether it
stems from time, place, or type of behavior should not materially disrupt class,
work or must not involve substantial disorder or invasion of the rights of
others.

PBM Employment Association v. PBM

Facts:
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Petitioners decided to stage a mass demonstration at the Malacaang in

protest of the alleged abuses of the Pasig police.
Said demonstration would be participated in by the workers in the first shift
(from 6 am to 2 pm) as well as those in the regular second and third shift
(from 7 am to 4pm and from 8 am to 5 pm, respectively), and that they
informed the respondent company, Philippine Blooming Mills Co., Inc. of their
proposed demonstration.

Ruling:
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The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to mans enjoyment of his life, to his
happiness and to his full and complete fulfillment. Thru these freedoms, the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate governmental

officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees

Right of Association
The basic constitutional provision is Article III, Section 8:
The right of the people, including those employed in the public and private
sectors, to form unions, associations or societies for purpose not contrary to law
shall not be abridged.
The right to form unions or associations is the freedom to organize or to be a
member of any group or association, union, or society, and to adopt the rules which the
members think most appropriate to achieve their purpose.
However, while constitutionality-recognized, the right to strike is not an absolute
right and not without legal limitations. This is clear as the Constitution itself provides that
the exercise of the right should be in accordance with law.

Purposes of the guarantee

1. It is to encourage the formation of voluntary associations so that through the
cooperative activities of individuals, the welfare of the nation may be advanced and the
government may thereby receive assistance in its ever-increasing public service
activities.
2. By enabling individuals to unite in the performance of tasks which singly they
would be unable to accomplish, such associations relieve the government of a vast
burden. The needs of the social body seek satisfaction in one form or the other, and if
they are not secured by voluntary means, the assistance of the government will
inevitably be invoked.
Limitation on the Right
The right to form associations or societies may be abridged or interfered with by
the state in the exercise of its police power.
Victoriano v Elizalde Rope Workers Union
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The Supreme Court sustained a provision in the old industrial peace court
allowing laborers to disassociate from or join a labor union despite of closed

shop agreement with management if they were members of any religious sect
which prohibits affiliation of their members in any such labor organization
It was held that the right to associate included the right not to associate and
that this particular exemption was intended for the benefit of laborers who
were inhibited from joining labor unions because of their religious belief.

Access to Information
The basic constitutional provision is Article III, Section 7:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining
to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen subject to
such limitations as may be provided by law.
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The policy of full public disclosure enunciated in section 28 of article II of the

Constitution complements the right of access to information on matters of
public concern found in the Bill of rights. The right of information guarantees
the right of the people to demand information, while section 28 recognizes the
duty of officialdom to give information even if nobody demands.
The people apparently refers to the citizens of the Philippines but this
without prejudice to the right of aliens to have access to records of cases
where they are involved.

Restrictions to the right to information

1. National security matters and intelligence;
2. Trade secrets and banking transactions;
3. Criminal matters; and
4. Other confidential information.

Prepared by:
Gittabao, Jerry B.
Lozano, Floro Jr.
Nava, Maria Carlina J.
Page-et, Kevin C.