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.

FACTS:
Assailed in this petition for certiorari
prohibition
and
mandamus
with
preliminary
mandatory and prohibitory injunction is the validity
of two [2] search warrants issued by respondent
Judge Ernani Cruz-Pano, 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. publisher-editor
of the "We Forum" newspaper, were seized.
Petitioners prayed that a writ of preliminary
mandatory and prohibitory injunction be issued for
the return of the seized articles, and that
respondents be enjoined from using the articles thus
seized as evidence against petitioner.
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. 2082[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.

Issue:
Whether or not the two warrants were valid to justify
seizure of the items.
Held:
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.
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."
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.
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.
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.
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.
G.R. No. 168338
February 15, 2008
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the
Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION
(NTC), respondents.
Facts:
The case originates from events that
occurred a year after the 2004 national and local
elections. On June 5, 2005, Press Secretary Ignacio
Bunye told reporters that the opposition was
planning to destabilize the administration by
releasing an audiotape of a mobile phone
conversation allegedly between the President of the
Philippines, Gloria Macapagal Arroyo, and a highranking official of the Commission on Elections
(COMELEC). The
conversation
was
audiotaped
allegedly
through
wire-tapping.
Later,
in
a Malacaang press
briefing,
Secretary
Bunye

produced two versions of the tape, one supposedly

the complete version, and the other, a spliced,
doctored or altered version, which would suggest
that the President had instructed the COMELEC
official to manipulate the election results in the
Presidents favor. It seems that Secretary Bunye
admitted that the voice was that of President Arroyo,
but subsequently made a retraction.
Former counsel of deposed President Joseph
Estrada, Atty. Alan Paguia, subsequently released an
alleged
authentic
tape
recording
of
the
wiretap. Included in the tapes were purported
conversations of the President, the First Gentleman
Jose
Miguel
Arroyo,
COMELEC
Commissioner
Garcillano, and the late Senator Barbers.
Respondent Department of Justice (DOJ)
Secretary Raul Gonzales warned reporters that those
who had copies of the compact disc (CD) and those
broadcasting or publishing its contents could be held
liable under the Anti-Wiretapping Act. These persons
included Secretary Bunye and Atty. Paguia. He also
stated that persons possessing or airing said tapes
were committing a continuing offense, subject to
arrest by anybody who had personal knowledge if the
crime was committed or was being committed in
their presence.
In
another
press
briefing,
Secretary
Gonzales
ordered
the
National
Bureau
of
Investigation
(NBI)
to
go
after
media
organizations found to have caused the spread, the
playing and the printing of the contents of a tape of
an alleged wiretapped conversation involving the
President about fixing votes in the 2004 national
elections. Gonzales said that he was going to start
with Inq7.net,
a
joint
venture
between
the Philippine Daily Inquirer and GMA7 television
network, because by the very nature of the Internet
medium, it was able to disseminate the contents of
the tape more widely. He then expressed his
intention of inviting the editors and managers of
Inq7.net and GMA7 to a probe, and supposedly
declared, I [have] asked the NBI to conduct a tactical
interrogation of all concerned.
The NTC issued this press release giving
FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS
TO
OBSERVE
ANTIWIRETAPPING LAW AND PERTINENT CIRCULARS ON
PROGRAM STANDARDS.
NTC held a dialogue with the Board of
Directors of the Kapisanan ng mga Brodkaster sa
Pilipinas (KBP). NTC allegedly assured the KBP that
the press release did not violate the constitutional
freedom of speech, of expression, and of the press,
and the right to information.
Petitioner Chavez filed a petition under Rule
65 of the Rules of Court against respondents
Secretary Gonzales and the NTC, praying for the
issuance of the writs ofcertiorari and prohibition, as
extraordinary legal remedies, to annul void
proceedings,
and
to
prevent
the
unlawful,
unconstitutional and oppressive exercise of authority
by the respondents.
Alleging that the acts of respondents are
violations of the freedom on expression and of the
press, and the right of the people to information on
matters of public concern, petitioner specifically
asked this Court:
[F]or [the] nullification of acts, issuances,
and orders of respondents committed or made since
June 6, 2005 until the present that curtail the publics
rights to freedom of expression and of the press, and
to information on matters of public concern
specifically in relation to information regarding the
controversial taped conversion of President Arroyo
and for prohibition of the further commission of such
acts, and making of such issuances, and orders by
respondents.
Respondents denied that the acts transgress
the Constitution, and questioned petitioners legal
standing to file the petition. Among the arguments
they raised as to the validity of the fair warning
issued by respondent NTC, is that broadcast media
enjoy lesser constitutional guarantees compared to
print media, and the warning was issued pursuant to
the
NTCs
mandate
to
regulate
the
telecommunications industry. It was also stressed
that most of the [television] and radio stations

continue, even to this date, to air the tapes, but of

late within the parameters agreed upon between the
NTC and KBP.

Issues:
(1) Will a purported violation of law such as the AntiWiretapping Law justify straitjacketing the exercise of
freedom of speech and of the press?
(2) Did the mere press statements of respondents
DOJ Secretary and the NTC constitute a form of
content-based prior restraint that has transgressed
the Constitution?
Held:
(1) No, a purported violation of law such as the AntiWiretapping Law will not justify straitjacketing the
exercise of freedom of speech and of the press. A
governmental action that restricts freedom of speech
or of the press based on content is given the strictest
scrutiny, with the government having the burden of
overcoming the presumed unconstitutionality by
the clear and present danger rule. This rule applies
equally to all kinds of media, including broadcast
media. Respondents, who have the burden to show
that these acts do not abridge freedom of speech
and of the press, failed to hurdle the clear and
present danger test. For this failure of the
respondents alone to offer proof to satisfy the clear
and present danger test, the Court has no option but
to uphold the exercise of free speech and free press.
There is no showing that the feared violation of the
anti-wiretapping law clearly endangers the national
security of the State.
(2) Yes, the mere press statements of respondents
DOJ Secretary and the NTC constituted a form of
content-based prior restraint that has transgressed
the Constitution. It is not decisive that the press
statements made by respondents were not reduced
in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by
respondents while in the exercise of their official
functions. Any act done, such as a speech uttered,
for and on behalf of the government in an official
capacity is covered by the rule on prior restraint.
The concept of an act does not limit itself to acts
already converted to a formal order or official
circular. Otherwise, the non formalization of an act
into an official order or circular will result in the easy
circumvention of the prohibition on prior restraint.
***
Freedom of speech and of the press means
something more than the right to approve existing
political beliefs or economic arrangements, to lend
support to official measures, and to take refuge in
the existing climate of opinion on any matter of
public consequence.[36] When atrophied, the right
becomes meaningless.[37] The right belongs as well -if not more to those who question, who do not
conform, who differ.[38] The ideas that may be
expressed under this freedom are confined not only
to those that are conventional or acceptable to the
majority. To be truly meaningful, freedom of speech
and of the press should allow and even encourage
the articulation of the unorthodox view, though it be
hostile to or derided by others; or though such view
induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to
anger.[39]To paraphrase Justice Holmes, it is freedom
for the thought that we hate, no less than for the
thought that agrees with us. [40]
The scope of freedom of expression is so broad that it
extends protection to nearly all forms of
communication. It protects speech, print and
assembly regarding secular as well as political
causes, and is not confined to any particular field of
human interest. The protection covers myriad
matters of public interest or concern embracing all
issues, about which information is needed or
appropriate, so as to enable members of society to
cope with the exigencies of their period. The

constitutional protection assures the broadest

possible exercise of free speech and free press for
religious, political, economic, scientific, news, or
informational ends, inasmuch as the Constitution's
basic guarantee of freedom to advocate ideas is not
confined to the expression of ideas that are
conventional or shared by a majority.
DIFFERENTIATION: THE LIMITS & RESTRAINTS
OF FREE SPEECH
From the language of the specific constitutional
provision, it would appear that the right to free
speech and a free press is not susceptible of any
limitation. But the realities of life in a complex
society preclude a literal interpretation of the
provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is
not an absolute, [42] nor is it an unbridled license that
gives immunity for every possible use of language
and prevents the punishment of those who abuse
this freedom.
Thus, all speech are not treated the
same. Some types of speech may be subjected to
some regulation by the State under its pervasive
police power, in order that it may not be injurious to
the equal right of others or those of the community
or society.[43] The difference in treatment is expected
because the relevant interests of one type of
speech, e.g., political speech, may vary from those of
another, e.g., obscene speech. Distinctions have
therefore been made in the treatment, analysis, and
evaluation of the permissible scope of restrictions on
various categories of speech. [44] We have ruled, for
example, that in our jurisdiction slander or libel, lewd
and obscene speech, as well as fighting words are
not entitled to constitutional protection and may be
penalized.[45]
Moreover, the techniques of reviewing alleged
restrictions on speech (overbreadth, vagueness, and
so on) have been applied differently to each
category, either consciously or unconsciously. [46] A
study of free speech jurisprudencewhether here or
abroadwill reveal that courts have developed
different tests as to specific types or categories of
speech
in
concrete situations; i.e., subversive
speech; obscene speech; the speech of the broadcast
media and of the traditional print media; libelous
speech; speech affecting associational rights; speech
before hostile audiences; symbolic speech; speech
that affects the right to a fair trial; and speech
associated with rights of assembly and petition. [47]
Generally, restraints on freedom of speech and
expression are evaluated by either or a combination
of three tests, i.e., (a) the dangerous tendency
doctrine which permits limitations on speech once a
rational connection has been established between
the
speech
restrained
and
the
danger
contemplated; [48] (b) the balancing of interests
tests, used as a standard when courts need to
balance conflicting social values and individual
interests, and requires a conscious and detailed
consideration of the interplay of interests observable
in
a
given
situation
of
type
of
situation; [49] and (c) the clear and present danger
rule which rests on the premise that speech may be
restrained because there is substantial danger that
the speech will likely lead to an evil the government
has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be
substantive, extremely serious and the degree of
imminence extremely high. [50]
As articulated in our jurisprudence, we have applied
either the dangerous tendency doctrine or clear
and present danger test to resolve free speech
challenges. More recently, we have concluded that
we have generally adhered to the clear and
present danger test.
FREEDOM OF THE PRESS
Much has been written on the philosophical basis of
press freedom as part of the larger right of free
discussion and expression. Its practical importance,
though, is more easily grasped. It is the chief source
of information on current affairs. It is the most

pervasive and perhaps most powerful vehicle of

opinion on public questions. It is the instrument by
which citizens keep their government informed of
their needs, their aspirations and their grievances. It
is the sharpest weapon in the fight to keep
government responsible and efficient. Without a
vigilant press, the mistakes of every administration
would go uncorrected and its abuses unexposed. As
Justice Malcolm wrote in United States v. Bustos:[52]
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 can be
assuaged with the balm of clear conscience.
Its contribution to the public weal makes freedom of
the press deserving of extra protection. Indeed, the
press benefits from certain ancillary rights. The
productions of writers are classified as intellectual
and proprietary. Persons who interfere or defeat the
freedom to write for the press or to maintain a
periodical publication are liable for damages, be they
private individuals or public officials.
E.4. ANATOMY OF RESTRICTIONS: PRIOR
RESTRAINT, CONTENT-NEUTRAL AND CONTENTBASED REGULATIONS
Philippine jurisprudence, even as early as the period
under the 1935 Constitution, has recognized four
aspects of freedom of the press. These are (1)
freedom from prior restraint; (2) freedom from
punishment
subsequent
to
publication; [53] (3)
freedom of access to information; [54] and (4) freedom
of circulation.[55]
Considering that petitioner has argued that
respondents press statement constitutes a form of
impermissible prior restraint, a closer scrutiny of this
principle is in order, as well as its sub-specie of
content-based (as distinguished from contentneutral) regulations.
At this point, it should be noted that respondents in
this case deny that their acts constitute prior
restraints. This presents a unique tinge to the
present challenge, considering that the cases in our
jurisdiction involving prior restrictions on speech
never had any issue of whether the governmental act
or
issuance actually constituted
prior
restraint. Rather, the determinations were always
about whether the restraint was justified by the
Constitution.
Be that as it may, the determination in every case of
whether there is an impermissible restraint on the
freedom of speech has always been based on the
circumstances of each case, including the nature of
the restraint. And in its application in our
jurisdiction, the parameters of this principle
have been etched on a case-to-case basis,
always tested by scrutinizing the governmental
issuance or act against the circumstances in
which they operate, and then determining the
appropriate test with which to evaluate.
Prior restraint refers to official governmental
restrictions on the press or other forms of expression
in advance of actual publication or dissemination.
[56]
Freedom from prior restraint is largely freedom
from government censorship of publications,
whatever the form of censorship, and regardless of
whether it is wielded by the executive, legislative or
judicial branch of the government. Thus, it precludes
governmental acts that required approval of a
proposal to publish; licensing or permits as
prerequisites to publication including the payment of
license taxes for the privilege to publish; and even
injunctions against publication. Even the closure of
the business and printing offices of certain
newspapers, resulting in the discontinuation of
their printing and publication, are deemed as
previous restraint or censorship. [57] Any law or official
that requires some form of permission to be had
before publication can be made, commits an

infringement of the constitutional right, and remedy

can be had at the courts.

government interest, which is unrelated to the

suppression of free expression. [69]

Given that deeply ensconced in our fundamental law

is the hostility against all prior restraints on speech,
and any act that restrains speech is presumed
invalid,[58] and any act that restrains speech is
hobbled by the presumption of invalidity and should
be greeted with furrowed brows, [59] it is important to
stress not all prior restraints on speech are
invalid. Certain previous restraints may be
permitted by the Constitution, but determined
only upon a careful evaluation of the challenged act
as against the appropriate test by which it should be
measured against.

Also, the incidental restriction on speech must be no

greater than what is essential to the furtherance of
that interest. [70] A restriction that is so broad that it
encompasses more than what is required to satisfy
the governmental interest will be invalidated. [71] The
regulation, therefore, must be reasonable and
narrowly drawn to fit the regulatory purpose,with the
least restrictive means undertaken. [72]

Hence, it is not enough to determine whether the

challenged act constitutes some form of restraint on
freedom of speech. A distinction has to be made
whether
the
restraint
is
(1)
a contentneutral regulation, i.e., merely concerned with the
incidents of the speech, or one that merely controls
the time, place or manner, and under well defined
standards;[60]or (2) a content-based restraint or
censorship, i.e., the restriction is based on the
subject matter of the utterance or speech. [61] The
cast of the restriction determines the test by which
the challenged act is assayed with.
When the speech restraints take the form of
a content-neutral regulation, only a substantial
governmental interest is required for its validity.
[62]
Because regulations of this type are not designed
to suppress any particular message, they are not
subject to the strictest form of judicial scrutiny but
an intermediate approachsomewhere between the
mere rationality that is required of any other law and
the compelling interest standard applied to contentbased
restrictions.[63] The test is
called intermediate because the Court will not
merely rubberstamp the validity of a law but also
require that the restrictions be narrowly-tailored to
promote an important or significant governmental
interest that is unrelated to the suppression of
expression. The intermediate approach has been
formulated in this manner:
A governmental regulation is sufficiently justified if it
is within the constitutional power of the Government,
if
it furthers
an
important or
substantial
governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and
if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential
to the furtherance of that interest. [64]
On the other hand, a governmental action that
restricts freedom of speech or of the press based on
content is given the strictest scrutiny in light of
its inherent and invasive impact. Only when the
challenged act has overcome the clear and present
danger rule will it pass constitutional muster,
[65]
with the government having the burden of
overcoming the presumed unconstitutionality.
Unless
the
government
can overthrow
this
presumption, the content-based restraint will be
struck down.[66]
With respect to content-based restrictions, the
government must also show the type of harm the
speech sought to be restrained would bring about
especially the gravity and the imminence of the
threatened harm otherwise the prior restraint will be
invalid. Prior restraint on speech based on its content
cannot be justified by hypothetical fears, but only by
showing a substantive and imminent evil that has
taken the life of a reality already on ground. [67] As
formulated, 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 bri
ng about the substantive evils that Congress has a
right to prevent. It is a question of proximity and
degree.[68]
The regulation which restricts the speech content
must also serve an important or substantial

Thus, when the prior restraint partakes of a contentneutral

regulation, it
is
subjected
to
an
intermediate review. A content-based regulation,
[73]
however, bears a heavy presumption of invalidity
and is measured against the clear and present
danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and
the restrictions imposed are neither overbroad nor
vague. [74]
Applying the foregoing, it is clear that the challenged
acts in the case at bar need to be subjected to
the clear and present danger rule, as they
are content-based restrictions.The
acts
of
respondents focused solely on but one objecta
specific content fixed as these were on the alleged
taped conversations between the President and a
COMELEC official. Undoubtedly these did not merely
provide regulations as to the time, place or manner
of the dissemination of speech or expression.
E.5. Dichotomy
of
Free
Press:
Print
v.
Broadcast Media
Finally, comes respondents argument that the
challenged act is valid on the ground that broadcast
media enjoys free speech rights that are lesser in
scope to that of print media. We next explore and
test the validity of this argument, insofar as it has
been invoked to validate a content-based restriction
on broadcast media.
The regimes presently in place for each type of
media differ from one other. Contrasted with the
regime in respect of books, newspapers, magazines
and traditional printed matter, broadcasting, film and
video have been subjected to regulatory schemes.
The dichotomy between print and broadcast media
traces its origins in the United States. There,
broadcast radio and television have been held to
have limited First Amendment protection,[75] and
U.S. Courts have excluded broadcast media from
the application of the strict scrutiny standard that
they would otherwise apply to content-based
restrictions.[76] According to U.S. Courts, the three
major reasons why broadcast media stands apart
from print media are: (a) the scarcity of the
frequencies by which the medium operates [i.e.,
airwaves are physically limited while print medium
may be limitless]; [77] (b) its pervasiveness as a
medium; and (c) its unique accessibility to children.
[78]
Because cases involving broadcast media need
not follow precisely the same approach that [U.S.
courts] have applied to other media, nor go so far as
to demand that such regulations serve compelling
government interests,[79] they are decided on
whether the governmental restriction is
narrowly tailored to further a substantial
governmental interest,[80] or the intermediate
test.
As
pointed
out
by
respondents,
Philippine
jurisprudence has also echoed a differentiation in
treatment
between
broadcast
and
print
media. Nevertheless, a review of Philippine
case law on broadcast media will show thatas
we
have
deviated
with
the
American
conception of the Bill of Rights [81] we likewise
did not adopt en masse the U.S. conception
of free speech as it relates to broadcast
media, particularly as to which test would
govern content-based prior restraints.
Our cases show two distinct features of this
dichotomy. First, the difference in treatment, in the
main, is in the regulatory scheme applied to

broadcast media that is not imposed on traditional

print media, and narrowly confined to unprotected
speech (e.g., obscenity, pornography, seditious and
inciting speech), or is based on a compelling
government interest that also has constitutional
protection, such as national security or the electoral
process.
Second, regardless of the regulatory schemes that
broadcast media is subjected to, the Court has
consistently held that the clear and present danger
test applies to content-based restrictions on media,
without making a distinction as to traditional print or
broadcast media.
The distinction between broadcast and traditional
print
media
was
first enunciated
in Eastern
Broadcasting Corporation (DYRE) v. Dans,[82] wherein
it was held that [a]ll forms of media, whether print or
broadcast, are entitled to the broad protection of the
freedom of speech and expression clause. The test
for limitations on freedom of expression continues to
be the clear and present danger rule

NATIONAL PRESS CLUB VS. COMELEC

[201 SCRA 1; G.R. NO. 1026653; 5 MAR 1992]
Facts:
Petitioners in these cases consist of
representatives of the mass media which are
prevented from selling or donating space and time
for political advertisements; two (2) individuals who
are candidates for office (one for national and the
other for provincial office) in the coming May 1992
elections; and taxpayers and voters who claim that
their right to be informed of election Issue and of
credentials of the candidates is being curtailed. It is
principally argued by petitioners that Section 11 (b)
of Republic Act No. 66461 invades and violates the
constitutional guarantees comprising freedom of
expression. Petitioners maintain that the prohibition
imposed by Section 11 (b) amounts to censorship,
because it selects and singles out for suppression
and repression with criminal sanctions, only
publications of a particular content, namely, mediabased election or political propaganda during the
election period of 1992. It is asserted that the
prohibition is in derogation of media's role, function
and duty to provide adequate channels of public
information and public opinion relevant to election
Issue. Further, petitioners contend that Section 11 (b)
abridges the freedom of speech of candidates, and
that the suppression of media-based campaign or
political propaganda except those appearing in the
Comelec space of the newspapers and on Comelec
time of radio and television broadcasts, would bring
about a substantial reduction in the quantity or
volume of information concerning candidates and
Issue in the election thereby curtailing and limiting
the right of voters to information and opinion.

Issue: Whether or Not Section 11 (b) of Republic Act

No. 6646 constitutional.
Held:
Yes. It seems a modest proposition that the provision
of the Bill of Rights which enshrines freedom of
speech, freedom of expression and freedom of the
press has to be taken in conjunction with Article IX
(C) (4) which may be seen to be a special provision
applicable during a specific limited period i.e.,
"during the election period." In our own society,
equality of opportunity to proffer oneself for public
office, without regard to the level of financial
resources that one may have at one's disposal, is
clearly an important value. One of the basic state
policies given constitutional rank by Article II, Section
26 of the Constitution is the egalitarian demand that
"the State shall guarantee equal access to
opportunities for public service and prohibit political
dynasties as may be defined by law." The essential
question is whether or not the assailed legislative or
administrative provisions constitute a permissible
exercise of the power of supervision or regulation of

the operations of communication and information

enterprises during an election period, or whether
such act has gone beyond permissible supervision or
regulation of media operations so as to constitute
unconstitutional repression of freedom of speech and
freedom of the press. The Court considers that
Section 11 (b) has not gone outside the permissible
bounds of supervision or regulation of media
operations during election periods.
Section 11 (b) is limited in the duration of its
applicability and enforceability. By virtue of the
operation of Article IX (C) (4) of the Constitution,
Section 11 (b) is limited in its applicability in time to
election periods. Section 11 (b) does not purport in
any way to restrict the reporting by newspapers or
radio or television stations of news or news-worthy
events relating to candidates, their qualifications,
political parties and programs of government.
Moreover, Section 11 (b) does not reach
commentaries and expressions of belief or opinion by
reporters or broadcasters or editors or commentators
or columnists in respect of candidates, their
qualifications, and programs and so forth, so long at
least as such comments, opinions and beliefs are not
in fact advertisements for particular candidates
covertly paid for. In sum, Section 11 (b) is not to be
read as reaching any report or commentary other
coverage that, in responsible media, is not paid for
by candidates for political office. Section 11 (b) as
designed to cover only paid political advertisements
of
particular
candidates.
The limiting impact of Section 11 (b) upon the right
to free speech of the candidates themselves is not
unduly repressive or unreasonable.

ADIONG VS. COMELEC [207 SCRA 712; G.R. NO.

103956; 31 MAR 1992]
Facts: COMELEC promulgated Resolution No. 2347
which provides that decals and stickers may be
posted only in any of the authorized posting areas,
prohibiting posting in "mobile" places, public or
private. Petitioner Blo Umpar Adiong, a senatorial
candidate in the May 11, 1992 elections now assails
the Resolution. In addition, the petitioner believes
that with the ban on radio, television and print
political advertisements, he, being a neophyte in the
field of politics stands to suffer grave and irreparable
injury
with
this
prohibition.
Issue: Whether or Not the COMELECs prohibition
unconstitutional.
Held: The prohibition unduly infringes on the
citizen's fundamental right of free speech. The
preferred freedom of expression calls all the more for
the utmost respect when what may be curtailed is
the dissemination of information to make more
meaningful the equally vital right of suffrage. The socalled balancing of interests individual freedom on
one hand and substantial public interests on the
other is made even more difficult in election
campaign cases because the Constitution also gives
specific authority to the Commission on Elections to
supervise the conduct of free, honest, and orderly
elections. When faced with border line situations
where freedom to speak by a candidate or party and
freedom to know on the part of the electorate are
invoked against actions intended for maintaining
clean and free elections, the police, local officials and
COMELEC, should lean in favor of freedom. The
regulation of election campaign activity may not pass
the test of validity if it is too general in its terms or
not limited in time and scope in its application, if it
restricts one's expression of belief in a candidate or
one's opinion of his or her qualifications, if it cuts off
the flow of media reporting, and if the regulatory
measure bears no clear and reasonable nexus with
the
constitutionally
sanctioned
objective.
The posting of decals and stickers in mobile places
like cars and other moving vehicles does not
endanger any substantial government interest. There
is no clear public interest threatened by such activity
so as to justify the curtailment of the cherished

citizen's right of free speech and expression. Under

the clear and present danger rule not only must the
danger be patently clear and pressingly present but
the evil sought to be avoided must be so substantive
as to justify a clamp over one's mouth or a writing
instrument to be stilled. The regulation strikes at the
freedom of an individual to express his preference
and, by displaying it on his car, to convince others to
agree with him. A sticker may be furnished by a
candidate but once the car owner agrees to have it
placed on his private vehicle, the expression
becomes a statement by the owner, primarily his
own and not of anybody else. The restriction as to
where the decals and stickers should be posted is so
broad that it encompasses even the citizen's private
property, which in this case is a privately-owned
vehicle. In consequence of this prohibition, another
cardinal rule prescribed by the Constitution would be
violated. Section 1, Article III of the Bill of Rights
provides that no person shall be deprived of his
property
without
due
process
of
law.
The prohibition on posting of decals and stickers on
"mobile" places whether public or private except in
the authorized areas designated by the COMELEC
becomes censorship.
ABS-CBN Broadcasting Corporation v. Commission on
Elections
Facts:
This is a Petition for Certiorari assailing Commission
on Elections (Comelec) en banc Resolution No. 981419 1 dated April 21, 1998. In the said Resolution,
the poll body "RESOLVED to approve the issuance of
a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting
such exit survey and to authorize the Honorable
Chairman to issue the same." The Resolution was
issued by the Comelec allegedly upon "information
from [a] reliable source that ABS-CBN (Lopez Group)
has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections and to make [an]
exit survey of the vote during the elections for
national officials particularly for President and Vice
President, results of which shall be [broadcast]
immediately." The electoral body believed that such
project might conflict with the official Comelec count,
as well as the unofficial quick count of the National
Movement for Free Elections (Namfrel). It also noted
that it had not authorized or deputized ABS-CBN to
undertake the exit survey.
Held:
The Supreme Court grants the petition; the Comelec
resolution is nullified.
Freedom of expression a fundamental principle of a
democratic government. The freedom of expression
is a fundamental principle of our democratic
government. It is a 'preferred' right and, therefore,
stands on a higher level than substantive economic
or other liberties. Our Constitution clearly mandates
that no law shall be passed abridging the freedom of
speech or of the press. At the very least, free speech
and a free press consist of the liberty to discuss
publicly and truthfully any matter of public interest
without prior restraint. The freedom of expression is
a means of assuring individual self-fulfillment, of
attaining the truth, of securing participation by the
people in social and political decision-making, and of
maintaining the balance between stability and
change. It represents a profound commitment to the
principle that debates on public issues should be
uninhibited, robust, and wide open. 18 It means more
than the right to approve existing political beliefs or
economic arrangements, to lend support to official
measures, or to take refuge in the existing climate of
opinion on any matter of public consequence. And
paraphrasing the eminent Justice Oliver Wendell
Holmes, we stress that the freedom encompasses the
thought we hate, no less than the thought we agree
with.
Freedom of expression; limited by valid exercise of
police power. The realities of life in a complex
society, however, preclude an absolute exercise of
the freedoms of speech and of the press. Such
freedoms could not remain unfettered and
unrestrained
at
all
times
and
under
all

circumstances. They are not immune to regulation by

the State in the exercise of its police power.
Theoretical tests in determining the validity of
restrictions to freedom of expression. There are two
theoretical tests in determining the validity of
restrictions to freedom of expression. These are the
'clear and present danger' rule and the 'dangerous
tendency' rule. The first, as interpreted in a number
of cases, means that the evil consequence of the
comment or utterance must be 'extremely serious
and the degree of imminence extremely high' before
the utterance can be punished. The danger to be
guarded against is the 'substantive evil' sought to be
prevented. The 'dangerous tendency' rule, on the
other hand, may be epitomized as follows: If the
words uttered create a dangerous tendency which
the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that
the language used be reasonably calculated to incite
persons to acts of force, violence, or unlawfulness. It
is sufficient if the natural tendency and probable
effect of the utterance be to bring about the
substantive evil which the legislative body seeks to
prevent.
Supreme Court adheres to the "clear and present
danger" test. Unquestionably, this Court adheres to
the "clear and present danger" test. In setting the
standard or test for the "clear and present danger"
doctrine, the Court echoed the words of Justice
Holmes: "The question in every case is whether the
words used are used in such circumstances and are
of such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a
question of proximity and degree."
In borderline conflict between freedom of expression
and state action to ensure clean and free elections,
the Court leans in favor of freedom. Even though the
government's
purposes
are
legitimate
and
substantial, they cannot be pursued by means that
broadly stifle fundamental personal liberties, when
the end can be more narrowly achieved. The
freedoms of speech and of the press should all the
more be upheld when what is sought to be curtailed
is the dissemination of information meant to add
meaning to the equally vital right of suffrage. When
faced with borderline situations in which the freedom
of a candidate or a party to speak or the freedom of
the electorate to know is invoked against actions
allegedly made to assure clean and free elections,
this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the
State's power to regulate should not be antagonistic.
There can be no free and honest elections if, in the
efforts to maintain them, the freedom to speak and
the right to know are unduly curtailed.
Exit polls do not constitute clear and present danger
of destroying the credibility and integrity of the
electoral process. The Comelec justifies its assailed
Resolution as having been issued pursuant to its
constitutional mandate to ensure a free, orderly,
honest, credible and peaceful election. It contends
that "an exit poll has the tendency to sow confusion
considering
the
randomness
of
selecting
interviewees, which further make[s] the exit poll
highly unreliable. The probability that the results of
such exit poll may not be in harmony with the official
count made by the Comelec is ever present. In other
words, the exit poll has a clear and present danger of
destroying the credibility and integrity of the
electoral process." Such arguments are purely
speculative and clearly untenable. First, by the very
nature of a survey, the interviewees or participants
are selected at random, so that the results will as
much as possible be representative or reflective of
the general sentiment or view of the community or
group polled. Second, the survey result is not meant
to replace or be at par with the official Comelec
count. It consists merely of the opinion of the polling
group as to who the electorate in general has
probably voted for, based on the limited data
gathered from polled individuals. Finally, not at stake
here are the credibility and the integrity of the
elections, which are exercises that are separate and
independent from the exit polls. If at all, the outcome
of one can only be indicative of the other.

[G.R. No. 147571. May 5, 2001]

SOCIAL WEATHER STATIONS, INCORPORATED
and KAMAHALAN PUBLISHING CORPORATION,
doing
business
as
MANILA
STANDARD, petitioners, vs.COMMISSION ON
ELECTIONS, respondent.
FACTS:
Petitioner, Social Weather Stations, Inc. (SWS), is a
private
non-stock,
non-profit
social
research
institution conducting surveys in various fields,
including economics, politics, demography, and
social development, and thereafter processing,
analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan
Publishing
Corporation
publishes
the
Manila
Standard, a newspaper of general circulation, which
features newsworthy items of information including
election surveys.
Petitioners brought this action for prohibition to
enjoin the Commission on Elections from enforcing
5.4 of R.A. No. 9006 (Fair Election Act), which
provides:
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and
surveys affecting local candidates shall not be
published seven (7) days before an election.
Petitioner SWS states that it wishes to
conduct an election survey throughout the period of
the elections both at the national and local levels and
release to the media the results of such survey as
well as publish them directly. Petitioner Kamahalan
Publishing Corporation, on the other hand, states
that it intends to publish election survey results up to
the last day of the elections on May 14, 2001.
Petitioners argue that the restriction on the
publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such
restraint. They claim that SWS and other pollsters
conducted and published the results of surveys prior
to the 1992, 1995, and 1998 elections up to as close
as two days before the election day without causing
confusion among the voters and that there is neither
empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable
danger to the voting process posed by election
surveys.They point out that no similar restriction is
imposed on politicians from explaining their opinion
or on newspapers or broadcast media from writing
and publishing articles concerning political issues up
to the day of the election. Consequently, they
contend that there is no reason for ordinary voters to
be denied access to the results of election surveys
which are relatively objective.
Respondent
Commission
on
Elections
justifies the restrictions in 5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and
corruption of the electoral process by unscrupulous
and erroneous surveys just before the election. It
contends that (1) the prohibition on the publication of
election survey results during the period proscribed
by law bears a rational connection to the objective of
the law, i.e., the prevention of the debasement of the
electoral process resulting from manipulated surveys,
bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the evils sought to be
prevented; and (3) the impairment of freedom of
expression is minimal, the restriction being limited
both in duration, i.e., the last 15 days before the
national election and the last 7 days before a local
election, and in scope as it does not prohibit election
survey
results
but only
require
timeliness.
Respondent claims that in National Press Club v.
COMELEC,[1] a total ban on political advertisements,
with candidates being merely allocated broadcast
time during the so-called COMELEC space or
COMELEC hour, was upheld by this Court. In contrast,
according to respondent, it states that the prohibition
in 5.4 of R.A. No. 9006 is much more limited.
ISSUE: WON 5.4 of RA 9006 abridges freedom of
speech, expression and the press.
HELD:
R.A.

The SC hold that such specific provision of

No. 9006 constitutes an unconstitutional

abridgment of freedom of speech, expression, and

the press.
To be sure, 5.4 lays a prior restraint on
freedom of speech, expression, and the press by
prohibiting the publication of election survey results
affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national
election and seven (7) days before a local election.
Because of the preferred status of the constitutional
rights of speech, expression, and the press, such a
measure is vitiated by a weighty presumption of
invalidity.[2] Indeed, any system of prior restraints of
expression comes to this Court bearing a heavy
presumption against its constitutional validity. . . .
The Government thus carries a heavy burden of
showing justification for the enforcement of such
restraint.[3] There is thus a reversal of the normal
presumption of validity that inheres in every
legislation.
Nor may it be argued that because of Art. IX-C, 4 of
the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of
communication, no presumption of invalidity
attaches to a measure like 5.4. For as we have
pointed out in sustaining the ban on media political
advertisements, the grant of power to the COMELEC
under Art. IX-C, 4 is limited to ensuring equal
opportunity, time, space, and the right to reply as
well as uniform and reasonable rates of charges for
the use of such media facilities for public information
campaigns and forums among candidates. [4] This
Court stated:
The technical effect of Article IX (C) (4) of the
Constitution may be seen to be that no presumption
of invalidity arises in respect of exercises of
supervisory or regulatory authority on the part of the
Comelec for the purpose of securing equal
opportunity among candidates for political office,
although such supervision or regulation may result
in some limitation of the rights of free speech and
free press.
In sum, the dissent has engaged only in a balancing
at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged
legislation and leaves freedom of speech, expression,
and the press with little protection. For anyone who
can bring a plausible justification forward can easily
show a rational connection between the statute and
a legitimate governmental purpose. In contrast, the
balancing of interest undertaken by then Justice
Castro in Gonzales v. COMELEC,[7] from which the
dissent in this case takes its cue, was a strong one
resulting in his conclusion that 50-B of R.A. No. 4880,
which limited the period of election campaign and
partisan political activity, was an unconstitutional
abridgment of freedom of expression.
Nor can the ban on election surveys be justified on
the ground that there are other countries 78,
according to the Solicitor General, while the dissent
cites 28 which similarly impose restrictions on the
publication of election surveys. At best this survey is
inconclusive. It is noteworthy that in the United
States no restriction on the publication of election
survey results exists. It cannot be argued that this is
because
the
United
States
is
a
mature
democracy. Neither are there laws imposing an
embargo on survey results, even for a limited period,
in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia,
Finland, Iceland, Ireland, Latvia, Malta, Macedonia,
the Netherlands, Norway, Sweden, and Ukraine,
some of which are no older nor more mature than the
Philippines in political development, do not restrict
the publication of election survey results.
What test should then be employed to determine the
constitutional validity of 5.4? The United States
Supreme Court, through Chief Justice Warren, held
in United States v. OBrien:
[A] government regulation is sufficiently justified [1]
if it is within the constitutional power of the
Government; [2] if it furthers an important or
substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression
of free expression; and [4] if the incidental restriction
on alleged First Amendment freedoms [of speech,
expression and press] is no greater than is essential
to the furtherance of that interest.[8]

This is so far the most influential test for

distinguishing content-based from content-neutral
regulations and is said to have become canonical in
the review of such laws.[9] It is noteworthy that
the OBrientest has been applied by this Court in at
least two cases.[10]
Under this test, even if a law furthers an important or
substantial governmental interest, it should be
invalidated if such governmental interest is not
unrelated to the suppression of free expression.
Moreover, even if the purpose is unrelated to the
suppression of free speech, the law should
nevertheless be invalidated if the restriction on
freedom of expression is greater than is necessary to
achieve the governmental purpose in question.
This is surely a less restrictive means than the
prohibition contained in 5.4. Pursuant to this power of
the COMELEC, it can confiscate bogus survey results
calculated to mislead voters. Candidates can have
their own surveys conducted. No right of reply can be
invoked by others. No principle of equality is
involved. It is a free market to which each candidate
brings his ideas. As for the purpose of the law to
prevent bandwagon effects, it is doubtful whether
the Government can deal with this natural-enough
tendency of some voters. Some voters want to be
identified with the winners. Some are susceptible to
the herd mentality. Can these be legitimately
prohibited by suppressing the publication of survey
results which are a form of expression? It has been
held that [mere] legislative preferences or beliefs
respecting matters of public convenience may well
support regulation directed at other personal
activities, but be insufficient to justify such as

diminishes the exercise of rights so vital to the

maintenance of democratic institutions.[18]
To summarize then, we hold that 5.4 is invalid
because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total
suppression of a category of expression even though
such suppression is only for a limited period, and (3)
the governmental interest sought to be promoted
can be achieved by means other than the
suppression of freedom of expression.
On the other hand, the COMELEC contends that
under Art. IX-A, 7 of the Constitution, its decisions,
orders, or resolutions may be reviewed by this Court
only by certiorari. The flaws in this argument is that it
assumes that its Resolution 3636, dated March 1,
2001 is a decision, order, or resolution within the
meaning of Art. IX-A, 7. Indeed, counsel for COMELEC
maintains that Resolution 3636 was rendered by the
Commission. However, the Resolution does not
purport to adjudicate the right of any party. It is not
an exercise by the COMELEC of its adjudicatory
power to settle the claims of parties. To the contrary,
Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence,
there is no basis for the COMELECs claim that this
petition for prohibition is inappropriate. Prohibition
has been found appropriate for testing the
constitutionality of various election laws, rules, and
regulations.

Newsounds Broadcasting vs. Dy, April 2,

2009