US VS. BUSTOS [37 PHIL. 731; G.R.

L-12592; 8 MAR 1918]

Facts: In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and
prepared and signed a petition to the Executive Secretary(privileged communication) through the law
office of Crossfield and O'Brien, and five individuals signed affidavits, charging Roman Punsalan,
justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking
for his removal. The specific chargesagainst the justice of the peace include the solicitation of money
from persons who have pending cases before the judge. Now, Punsalan alleged that accused
published a writing which was false, scandalous, malicious, defamatory, and libelous against him.

Issue: Whether or Not accused is entitled to constitutional protection by virtue of his right to free
speech and free press.

Held: Yes. 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
suppressed. 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 thecharges made. All persons have an interest in the pure and efficient
administration of justice and of public affairs.
Public policy, the welfare of society, and the orderly administration of government have demanded
protection for public opinion. The inevitable and incontestable result has been the development and
adoption of the doctrine of privilege. All persons have an interest in the pure and efficient
administration of justice and of public affairs. The duty under which a party is privileged is sufficient if
it is social or moral in its nature and this person in good faith believes he is acting in pursuance
thereof although in fact he is mistaken. 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.
In the usual case malice can be presumed from defamatory words. Privilege destroys that
presumption. A privileged communication should not be subjected to microscopic examination to
discover grounds of malice or falsity.

Burgos, Sr. vs Chief of Staff, AFP

133 SCRA 800
G.R. No. 64261
December 26, 1984
Facts: Petitioners assail the validity of 2 search warrants issued on December 7, 1982 by
respondent Judge Cruz-Pano of the then Court of First Instance of Rizal, 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. 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.
Respondents contend that petitioners should have filed a motion to quash said warrants in the court
that issued them before impugning the validity of the same before this Court. Respondents also
assail the petition on ground of laches (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). Respondents further
state that since petitioner had already used as evidence some of the documents seized in a prior
criminal case, he is stopped from challenging the validity of the search warrants.
Petitioners submit the following reasons to nullify the questioned warrants:
1.
Respondent Judge failed to conduct an examination under oath or affirmation of the
applicant and his witnesses, as mandated by the above-quoted constitutional provision as well as
Sec. 4, Rule 126 of the Rules of Court.
2.
The search warrants pinpointed only one address which would be the former
abovementioned address.
3.
Articles belonging to his co-petitioners were also seized although the warrants were only
directed against Jose Burgos, Jr.
4.

Real properties were seized.

5.
The application along with a joint affidavit, upon which the warrants were issued, from the
Metrocom Intelligence and Security Group could not have provided sufficient basis for the finding of
a probable cause upon which a warrant may be validly issued in accordance with Section 3, Article
IV of the 1973 Constitution.
Respondents 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
sequestration of the property of any person engaged in subversive activities against the government
in accordance with implementing rules and regulations as may be issued by the Secretary of
National Defense.

Issue: Whether or Not the 2 search warrants were validly issued and executed.
Held: In regard to the quashal of warrants that petitioners should have initially filed to the lower
court, this Court takes cognizance of this petition in view of the seriousness and urgency of the
constitutional Issue 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. With the contention pertaining to laches, the petitioners gave an explanation
evidencing that they have exhausted other extra-judicial efforts to remedy the situation, negating the
presumption that they have abandoned their right to the possession of the seized property.
On the enumerated reasons:
1.
This objection 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.
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.
3.
Section 2, Rule 126, of the Rules of Court, 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.
4.
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 broad statements in the application and joint affidavit are mere conclusions of law and
does not satisfy the requirements of probable cause. Deficient 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. In Alvarez v. Court
of First Instance, 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." Another factor which makes the search warrants under
consideration constitutionally objectionable is that they are in the nature of general warrants. The
description of the articles sought to be seized under the search warrants in question are too
general.
With regard to the respondents invoking PD 885, there is an absence of any implementing rules and
regulations promulgated by the Minister of National Defense. Furthermore, President Marcos himself
denies the request of military authorities to sequester the property seized from petitioners. The
closure of the premises subjected to search and seizure is contrary to the freedom of the press as
guaranteed in our fundamental law. The search warrants are declared null and void.
New York Times Co. v. Sullivan, 376 U.S. 254; 84 S. Ct. 710; 11 L. Ed. 2d 686, U.S. Supreme
Court [1964]

Facts: On March 29, 1960, the New York Times carried a full-page advertisement entitled, Heed
Their Rising Voices, which contained several paragraphs describing unfair treatment of Alabama
State College student protestors, two of which specifically mentioned unfair treatment by the police.
Respondent L.B. Sullivan was one of three commissioners of the city of Montgomery, Alabama. One
of his main duties was the supervision of the city police department. Although none of the
statements made within the advertisement directly named Sullivan, he argued that, as supervisor of
the city police department, he was being accused of allowing the described treatment of the
students.
It was found that some of the statements contained in the two paragraphs in question were not
accurate descriptions of what had actually occurred and placed the police department in a very
unfavorable light. Additionally, all witnesses who testified stated that they did not believe the
statements in reference to the respondent.
Respondent Sullivan brought a claim of libel against four of the individuals whose names, among
others, were in the advertisement and against the New York Times for publishing the advertisement.
History: The trial court found for respondent and awarded him damages of $500,000 against all
defendants on the grounds that the statements in the advertisement were libelous per se [legal injury
being implied without proof of actual damages], false, and not privileged. On appeal, the Supreme
Court of Alabama affirmed the decision. Plaintiffs appealed to the United States Supreme Court.

Issue: Can a public figure receive damages in a civil libel action, if malice is not proven?

Ruling: No. The U.S. Supreme Court reversed the judgment and remanded the case.

Rule/Analysis: The Supreme Court held that petitioner was protected by the First and Fourteenth
Amendments. As such, a public official [respondent] was prohibited from recovering damages for a
defamatory falsehood relating to his official conduct unless it could be proven that the statement was
made with actual malice.

Summary: Respondent presented no evidence to show petitioner was aware of erroneous

statements or was reckless in that regard, and therefore could not prove malice. In the absence of
malice, respondent could not recover damages.

In RE: Declaratory Relief RE Constitutionality of RA 4880. Gonzales vs. Commission on

Elections [GR L-27833, 18 April 1969] En Banc, Fernando (J): 4 concur in result, 3 filed own
separate opinions

Facts: Two new sections were included in the Revised Election Code, under Republic Act 4880,
which was approved and took effect on 17 June 1967, prohibiting the too early nomination of
candidates and limiting the period of election campaign or partisan political activity. On 22 July 1967,
Arsenio Gonzales and Felicisimo R. Cabigao filed an action entitled "Declaratory Relief with
Preliminary Injunction," a proceeding that should have been started in the Court of First Instance, but
treated by the Supreme Court as one of prohibition in view of the seriousness and the urgency of the
constitutional issue raised. Gonzales and Cabigao alleged that the enforcement of said RA 4880
would prejudice their basic rights, such as their freedom of speech, their freedom of assembly and
their right to form associations or societies for purposes not contrary to law, guaranteed under the
Philippine Constitution," and that therefore said act is unconstitutional. Cabigao was, at the time of
the filing of the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista
Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on 11
November 1967; while Gonzales is a private individual, a registered voter in the City of Manila and a
political leader of his co-petitioner.

Issue: Whether the freedom of expression may be limited.

Held: The primacy, the high estate accorded freedom of expression is of course a fundamental
postulate of our constitutional system. No law shall he passed abridging the freedom of speech or of
the press. It embraces, at the very least, free speech and free press may be identified with the liberty
to discuss publicly and truthfully any matter of public interest without censorship or punishment.
There is to be then no previous restraint on the communication of views or subsequent liability
whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is undeniable whether as a
means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the
people in social including political decision-making, and of maintaining the balance between stability
and change. The trend as reflected in Philippine and American decisions is to recognize the
broadest scope and assure the widest latitude to this constitutional guaranty. It represents a
profound commitment to the principle that debate of public issue should be uninhibited, robust, and
wide-open. It is not going too far to view the function of free speech as inviting dispute. "It may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." Freedom of speech and of the press thus
means something more than the right to approve existing political beliefs or economic arrangements,
to lend support to official measures, to take refuge in the existing climate of opinion on any matter of
public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not
more, for those who question, who do not conform, and who differ. To paraphrase Justice Holmes, it
is freedom for the thought that we hate, no less than for the thought that agrees with us. From the
language of the specific constitutional provision, it would appear that the right is not susceptible of
any limitation. No law may be passed abridging the freedom of speech and of the press. The
realities of life in a complex society preclude however a literal interpretation. Freedom of expression
is not an absolute. It would be too much to insist that at all times and under all circumstances it
should remain unfettered and unrestrained. There are other societal values that press for
recognition. Two tests that may supply an acceptable criterion for permissible restriction. These are
the "clear and present danger" rule and the "dangerous tendency" rule. The Court is of the view that
no unconstitutional infringement exists insofar as the formation of organizations, associations, clubs,
committees, or other groups of persons for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or party is restricted and that the
prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or
indirectly, is equally free from constitutional infirmity. The restriction on freedom of assembly as
confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or
both for or against a candidate or party, leaving untouched all other legitimate exercise of such
poses a more difficult question. Nevertheless, after a thorough consideration, it should not be
annulled. The other acts, likewise deemed included in "election campaign" or "partisan political
activity" tax to the utmost the judicial predisposition to view with sympathy legislative efforts to
regulate election practices deemed inimical, because of their collision with the preferred right of
freedom of expression. The scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a clear and present danger of a
substantive evil, the debasement of the electoral process. The majority of the Court is of the belief
that the ban on the solicitation or undertaking of any campaign or propaganda, whether directly or
indirectly, by an individual, the making of speeches, announcements or commentaries or holding
interview for or against the election for any party or candidate for public office, or the publication or

distribution of campaign literature or materials, suffers from the corrosion of invalidity. It lacks
however one more affirmative vote to call for a declaration of unconstitutionality. The necessary 2/3
vote, however, not being obtained, there is no occasion for the power to annul statutes to come into
play. Such being the case, it is the judgment of the Court that RA 4880 cannot be declared
unconstitutional.

Social Weather Stations Inc. vs. Commission on Elections [GR 147571, 5 May 2001] Second
Division, Mendoza (J): 3 concur

Facts: The Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research
institution conducting surveys in various fields, including economics, politics, demography, and social
development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the
other hand, Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of
general circulation, which features news-worthy items of information including election surveys. SWS
and Kamahalan Publishing brought the action for prohibition with the Supreme Court to enjoin the
Commission on Elections from enforcing 5.4 of RA 9006 (Fair Election Act), which provides that
"Surveys affecting national candidates shall not be published fifteen (15) days before an election and
surveys affecting local candidates shall not be published seven (7) days be- fore an election." SWS
states that it wishes to conduct an election survey throughout the period of the elections both at the
national and local levels and release to the media the results of such survey as well as publish them
directly. Kamahalan Publishing, on the other hand, states that it intends to publish election survey
results up to the last day of the elections on 14 May 2001. They argue that the restriction on the
publication of election survey results constitutes a prior restraint on the exercise of freedom of
speech without any clear and present danger to justify such restraint. They claim that SWS and other
pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections
up to as close as two days before the election day without causing confusion among the voters and
that there is neither empirical nor historical evidence to support the conclusion that there is an
immediate and inevitable danger to tile voting process posed by election surveys. They point out that
no similar restriction is imposed on politicians from explaining their opinion or on newspapers or
broadcast media from writing and publishing articles concerning political issues up to the day of the

election. Consequently, they contend that there is no reason for ordinary voters to be denied access
to the results of election surveys, which are relatively objective.

Issue: Whether 5.4 of RA 9006 constitutes an unconstitutional abridgment of freedom of speech,

expression, and the press.

Held: 5.4 of RA 9006 constitute an unconstitutional abridgment of freedom of speech, expression,

and the press. 5.4 lays a prior restraint on freedom of speech, expression, and the press prohibiting
the publication of election survey results affecting candidates within the prescribed periods of 15
days immediately preceding a national election and 7 days before a local election. Because of the
preferred status of the constitutional rights of speech, expression, and the press, such a measure is
vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression
comes to the Supreme Court bearing a heavy presumption against its constitutional validity. The
Government thus carries a heavy burden of showing justification for in enforcement of such restraint.
There, thus a reversal of the normal presumption of validity that inheres in every legislation. Sec. 5.4
fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the
asserted governmental interest makes such interest "not related to the suppression of free
expression." By prohibiting the publication of election survey results because of the possibility that
such publication might undermine the integrity of the election, 5.4 actually suppresses a whole
class of expression, while allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In
effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal
opinion to statistical results. The constitutional guarantee of freedom of expression means that "the
government has no power to restrict expression because of its message, its ideas, its subject matter,
or its content." The prohibition imposed by 5.4 cannot be justified on the ground that it is only for a
limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of
the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a
category of speech and is not made less so because it is only for a period of 15 days immediately
before a national election and 7 days immediately before a local election. In fine, 5.4 is invalid
because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression is only for a limited period,
and (3) the governmental interest sought to be promoted can be achieved by means other than
suppression of freedom of expression.

Zaldivar vs. Sandiganbayan [GR 79690-707, 1 February 1989]; also Zaldivar vs. Gonzales [GR
80578] Resolution En Banc, Per Curiam: 15 concur

Facts: [Acquired from 27 April 1988 decision] Enrique A. Zaldivar, governor of the province of
Antique, sought, through a petition for Certiorari, Prohibition, and Mandamus, to restrain the
Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing
of Criminal Cases 12159 to 12161 and 12163-12177 on the ground that said cases were filed by
said Tanodbayan without legal and constitutional authority, since under the 1987 Constitution which
took effect on 2 February 1987, it is only the Ombudsman (not the present or incumbent
Tanodbayan) who has the authority to file cases with the Sandiganbayan. Similarly, Enrique A.

Zaldivar, on substantially the same ground as the first petition, prays that Tanodbayan Gonzalez be
restrained from conducting preliminary investigations and filing similar cases with the
Sandiganbayan. The Supreme Court granted the consolidated petitions filed by Zaldivar and nullified
the criminal informations filed against him in the Sandiganbayan; and ordered Raul Gonzalez to
cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or
otherwise exercising the powers and functions of the Ombudsman.

[Present case] Tanodbayan Gonzales allegedly made contumacious acts or statements in a pleading
filed before the Court and in statements given to the media. In its Resolution dated 2 May 1988, the
Supreme Court required Tanodbayan Gonzales to explain "why he should not be punished for
contempt of court and/or subjected to administrative sanctions" and in respect of which, Gonzales
was heard and given the most ample opportunity to present all defenses, arguments and evidence
that he wanted to present for the consideration of this Court. The Court did not summarily impose
punishment upon Gonzales which it could have done under Section 1 of Rule 71 of the Revised
Rules of Court had it chosen to consider Gonzales' acts as constituting "direct contempt." In the per
curiam resolution dated 7 October 1988, the Court found Tanodbayan Gonzalez to be "guilty both of
contempt of court in facie curiae and of gross misconduct as an officer of the court and member of
the bar." Gonzales filed a motion for reconsideration.

Issue: Whether the statements made by Tanodbayan Gonzales transcended the permissible limits
of free speech.

Held: The "clear and present danger" doctrine is not a magic incantation which dissolves all
problems and dispenses with analysis and judgment in the testing of the legitimacy of claims to free
speech, and which compels a court to exonerate a defendant the moment the doctrine is invoked,
absent proof of impending apocalypse. The "clear and present danger" doctrine has been an
accepted method for marking out the appropriate limits of freedom of speech and of assembly in
certain contexts. It is not, however, the only test which has been recognized and applied by courts.
Although the prevailing doctrine is that the clear and present danger rule is such a limitation; another
criterion for permissible limitation on freedom of speech and of the press, which includes such
vehicles of the mass media as radio, television and the movies, is the "balancing-of interests test."
The principle requires a court to take conscious and detailed consideration of the interplay of
interests observable in a given situation or type of situation' Still, under either the "clear and present
danger" test or the "balancing-of-interest test" the Corut believes that the statements made by
Gonzalez are of such a nature and were made in such a manner and under such circumstances, as
to transcend the permissible limits of free speech. This conclusion was implicit in the per curiam
Resolution of October 7, 1988. It is important to point out that the "substantive evil" which the
Supreme Court has a right and a duty to prevent does not, in the present case, relate to threats of
physical disorder or overt violence or similar disruptions of public order. What is here at stake is the
authority of the Supreme Court to confront and prevent a "substantive evil" consisting not only of the

obstruction of a free and fair hearing of a particular case but also the avoidance of the broader evil of
the degradation of the judicial system of a country and the destruction of the standards of
professional conduct required from members of the bar and officers of the courts. The "substantive
evil" here involved, in other words, is not as palpable as a threat of public disorder or rioting but is
certainly no less deleterious and more far reaching in its implications for society.

Sanidad vs. Commission on Elections [GR 90878, 29 January 1990] En Banc, Medialdea (J): 14
concur

Facts: On 23 October 1989, Republic Act 6766, entitled "An Act Providing for an Organic Act for the
Cordillera Autonomous Region" was enacted into law. Pursuant to said law, the City of Baguio and
the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and
Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for
the ratification of said Organic Act originally scheduled last 27 December 1989 which was, however,
reset to 30 January 1990 by virtue of Comelec Resolution 2226 dated 27 December 1989. The
Commission on Elections (COMELEC), by virtue of the power vested by the 1987 Constitution, the
Omnibus Election Code (BP 881), said RA 6766 and other pertinent election laws, promulgated
Resolution 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera
Autonomous Region. In a petition for certiorari dated 20 November 1989, Pablito V. Sanidad, who
claims to be a newspaper columnist of the "Overview" for the Baguio Midland Courier, a weekly
newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of
Section 19 of Comelec Resolution 2167, which provides that "During the plebiscite campaign period,
on the day before and on plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for or against the plebiscite
issues." Sanidad alleged that said provision is void and unconstitutional because it violates the
constitutional guarantees of the freedom of expression and of the press enshrined in the
Constitution.

Issue: Whether the COMELEC, through Section 19 of Comelec Resolution 2167, restricts Sanidads
freedom of expression for no justifiable reason.

Held: It is clear from Article IX-C of the 1987 Constitution that what was granted to the COMELEC
was the power to supervise and regulate the use and enjoyment of franchises, permits or other
grants issued for the operation of transportation or other public utilities, media of communication or
information to the end that equal opportunity, time and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates are
ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder
may favor or give any undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a "columnist, commentator, announcer or personality,
who is a candidate for any elective office is required to take a leave of absence from his work during
the campaign period. It cannot be gainsaid that a columnist or commentator who is also a candidate
would be more exposed to the voters to the prejudice of other candidates unless required to take a

leave of absence. However, neither Article IX-C of the Constitution nor Section 11(b), 2nd paragraph
of RA 6646 can be construed to mean that the Comelec has also been granted the right to supervise
and regulate the exercise by media practitioners themselves of their right to expression during
plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates. In fact, there are no candidates
involved in a plebiscite. Therefore, Section 19 of Comelec Resolution 2167 has no statutory basis.
Plebiscite issues are matters of public concern and importance. The people's right to be informed
and to be able to freely and intelligently make a decision would be better served by access to an
unabridged discussion of the issues, including the forum. The people affected by the issues
presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right
to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for
expression but they do not guarantee full dissemination of information to the public concerned
because they are limited to either specific portions in newspapers or to specific radio or television
times. While the limitation in Section 19 of Comelec Resolution 2167 does not absolutely bar
Sanidad's freedom of expression, it is still a restriction on his choice of the forum where he may
express his view. No reason was advanced by the COMELEC to justify such abridgement. This form
of regulation, thus, is tantamount to a restriction of Sanidad's freedom of expression for no justifiable
reason.

Janet Reno vs. Americal Civil Liberties Union [521 US 884,26 June 1997] Stevens (J): 6 concur,
1 filed separate opinion to which 1 joined

Facts: Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect
minors from harmful material on the Internet, an international network of interconnected computers
that enables millions of people to communicate with one another in "cyberspace" and to access vast
amounts of information from around the world. Title 47 U. S. C. A. 223(a)(1)(B)(ii) (Supp. 1997)
criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under
18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18
of any message "that, in context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or organs." Affirmative defenses
are provided for those who take "good faith, . . . effective . . . actions" to restrict access by minors to
the prohibited communications, 223(e)(5)(A), and those who restrict such access by requiring
certain designated forms of age proof, such as a verified credit card or an adult identification
number, 223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of 223(a)(1)
and 223(d). After making extensive findings of fact, a three judge District Court convened pursuant to
the Act entered a preliminary injunction against enforcement of both challenged provisions. The
court's judgment enjoins the Government from enforcing 223(a)(1)(B)'s prohibitions insofar as they
relate to "indecent" communications, but expressly preserves the Government's right to investigate
and prosecute the obscenity or child pornography activities prohibited therein. The injunction against

enforcement of 223(d) is unqualified because that section contains no separatereference to

obscenity or child pornography. The Government appealed to the Supreme Court under the Act's
special review provisions, arguing that the District Court erred in holding that the CDA violated both
the First Amendment because it is overbroad and the Fifth Amendment because it is vague.

Issue: Whether the Communications Decency Act of 1996 places an unacceptably heavy burden on
protected speech.

Held: Regardless of whether the Communications Decency Act of 1996 (CDA) is so vague that it
violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it
problematic for purposes of the First Amendment. For instance, each of the two parts of the CDA
uses a different linguistic form. The first uses the word "indecent," while the second speaks of
material that "in context, depicts or describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities or organs." Given the absence of
a definition of either term, this difference in language will provoke uncertainty among speakers about
how the two standards relate to each other and just what they mean. This uncertainty undermines
the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors
from potentially harmful materials. The vagueness of the CDA is a matter of special concern for two
reasons. First, the CDA is a content based regulation of speech. The vagueness of such a regulation
raises special First Amendment concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison for each act
of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. The CDA regulates speech on the
basis of its content. A "time, place, and manner" analysis is therefore inapplicable. It is thus
immaterial whether such speech would be feasible on the Web (which, as the Government's own
expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated
by an existing Web site, not including costs for database management and age verification). The
Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as
long as individuals are free to publish books. In invalidating a number of laws that banned leafletting
on the streets regardless of their content-- the Court explained that "one is not to have the exercise
of his liberty of expression in appropriate places abridged on the plea that it may be exercised in
some other place." Also, most Internet fora -- including chat rooms, newsgroups, mail exploders, and
the Web -- are open to all comers. Even the strongest reading of the "specific person" requirement of
223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a
"heckler's veto," upon any opponent of indecent speech who might simply log on and inform the
would be discoursers that his 17 year old child -- a "specific person under 18 years of age," -- would
be present. Finally, there is no textual support for the Government's submission that material having
scientific, educational, or other redeeming social value will necessarily fall outside the CDA's
"patently offensive" and "indecent" prohibitions. Thus, the CDA places an unacceptably heavy
burden on protected speech, and that the defenses do not constitute the sort of "narrow tailoring"
that will save an otherwise patently invalid unconstitutional provision. The CDA, casting a far darker

shadow over free speech, threatens to torch a large segment of the Internet community. The ruling of
the district court was sustained.

Miriam College Foundation Inc. vs. Court of Appeals [GR 127930, 15 December 2000] First
Division, Kapunan (J): 3 concur, 1 took no part

Facts: Following the publication of the September-October 1994 issue (Vol. 41, No. 14) of Miriam
College's school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-Rho), the
members of the editorial board, and Relly Carpio, author of Libog, all students of Miriam College,
received a letter signed by Dr. Aleli Sevilla, Chair of the Miriam College Discipline Committee. The
Letter dated 4 November 1994 informed them that letters of complaint were "filed against you by
members of the Miriam Community and a concerned Ateneo grade five student have been
forwarded to the Discipline Committee for inquiry and investigation. Please find enclosed complaints.
As expressed in their complaints you have violated regulations in the student handbook specifically
Section 2 letters B and R, pages 30 and 32, Section 4 (Major offenses) letter j, page 36 letters m, n,
and p, page 37 and no. 2 (minor offenses) letter a, page 37. You are required to submit a written

statement in answer to the charge/s on or before the initial date of hearing to be held on November
15, 1994, Tuesday, 1:00 in the afternoon at the DSA Conference Room." None of the students
submitted their respective answers. They instead requested Dr. Sevilla to transfer the case to the
Regional Office of the Department of Education, Culture and Sports (DECS) which under Rule XII of
DECS Order 94, Series of 1992, supposedly had jurisdiction over the case. In a Letter dated 21
November 1994, Dr. Sevilla again required the students to file their written answers. In response,
Atty. Ricardo Valmonte, lawyer for the students, submitted a letter to the Discipline Committee
reiterating his clients' position that said Committee had no jurisdiction over them. According to Atty.
Valmonte, the Committee was "trying to impose discipline on his clients on account of their having
written articles and poems in their capacity as campus journalists." Hence, he argued that "what
applies is Republic Act No. 7079 The Campus Journalism Act and its implementing rules and
regulations." He also questioned the partiality of the members of said Committee who allegedly "had
already articulated their position" against his clients. The Discipline Committee proceeded with its
investigation ex parte. Thereafter, the Discipline Board, after a review of the Discipline Committee's
report, imposed disciplinary sanctions upon the students, to wit: (1) Jasper Briones [Editor-in-Chief
of ChiRho, 4th year student]: Expulsion; (2) Daphne Cowper: Suspension up to (summer) March
1995; (3) Imelda Hilario: suspension for 2 weeks to expire on 2 February 1995; (4) Deborah Ligon
[4th year student and could graduate as summa cum laude]: suspension up to May 1995; (5)
Elizabeth Valdezco: suspension up to (summer) March 1995; (6) Camille Portuga [Octoberian]:
graduation privileges withheld, including diploma; (7) Joel Tan: suspension for 2 weeks to expire on
2 February 1995; (8) Gerald Gary Renacido [2nd year student]: Expelled and given transfer
credentials; (9) Relly Carpio [3rd year student]: Dismissed and given transfer credentials; (10)
Jerome Gomez [3rd year student]: Dismissed and given transfer credentials; and (11) Jose Mari
Ramos [Art editor of Chi-Rho, 2nd year student]: Expelled and given transfer papers. Said students
thus filed a petition for prohibition and certiorari with preliminary injunction/restraining order before
the Regional Trial Court of Quezon City questioning the jurisdiction of the Discipline Board of Miriam
College over them. On 17 January 1995, the Regional Trial Court, Branch CIII, presided by Judge
Jaime N. Salazar, Jr., issued an order denying the students' prayer for a Temporary Restraining
Order. The students thereafter filed a "Supplemental Petition and Motion for Reconsideration."
Subsequently, the RTC issued an Order dated 10 February 1995 granting the writ of preliminary
injunction. Both parties moved for a reconsideration of the above order. In an Order dated 22
February 1995, the RTC dismissed the petition. The students, excluding Deborah Ligon, Imelda
Hilario and Daphne Cowper, sought relief in the Supreme Court through a petition for certiorari and
prohibition of preliminary injunction/restraining order11 questioning the Orders of the RTC dated 10
and 24 February 1995. On 15 March 1995, the Court resolved to refer the case to the Court of
Appeals (CA) for disposition. In its Decision dated 26 September 1996, the appellate court granted
the students' petition. The CA declared the RTC Order dated 22 February 1995, as well as the
students' suspension and dismissal, void. Miriam College filed the present petition.

Issue: Whether Section 7 of the Campus Journalism Act precludes the schools right to discipline its
students.

Held: In several cases, the Supreme Court has upheld the right of the students to free speech in
school premises. The right of the students to free speech in school premises, however, is not
absolute. The right to free speech must always be applied in light of the special characteristics of the
school environment. Thus, while the Court upheld the right of the students to free expression in the
cases of Malabanan vs. Ramento, Villar vs. Technological Institute of the Philippines, Arreza vs.
Gregorio Araneta University Foundation, and Non vs. Dames II, the Court did not rule out disciplinary
action by the school for "conduct by the student, in class or out of it, which for any reason - whether
it stems from time, place, or type of behavior - which materially disrupts classwork or involves
substantial disorder or invasion of the rights of others." Provisions of law (such as Section 7 of the
Campus Journalism Act) should be construed in harmony with those of the Constitution; acts of the
legislature should be construed, wherever possible, in a manner that would avoid their conflicting
with the fundamental law. A statute should not be given a broad construction if its validity can be
saved by a narrower one. Thus, Section 7 should be read in a manner as not to infringe upon the
school's right to discipline its students. At the same time, however, said provision should not be
construed as to unduly restrict the right of the students to free speech. Consistent with
jurisprudence, Section 7 of the Campus Journalism Act is read to mean that the school cannot
suspend or expel a student solely on the basis of the articles he or she has written, except when
such article materially disrupt class work or involve substantial disorder or invasion of the rights of
others. Further, the power of the school to investigate is an adjunct of its power to suspend or expel.
It is a necessary corollary to the enforcement of rules and regulations and the maintenance of a safe
and orderly educational environment conducive to learning. That power, like the power to suspend or
expel, is an inherent part of the academic freedom of institutions of higher learning guaranteed by
the Constitution. The Court therefore rules that Miriam College has the authority to hear and decide
the cases filed against the students.

ABS-CBN Broadcasting Corp v. COMELEC

January 28, 2000
FACTS: COMELEC issued a Resolution approving the issuance of a restraining order to stop ABS
CBN or any other groups, its agents or representatives from conducting exit surveys. 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 broadcasted 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.
Two days before the elections on May 11, 1998, the Court issued the Temporary Restraining
Order prayed for by petitioner ABS-CBN. The Comelec was directed to cease and desist, until
further orders, from implementing the assailed Resolution or the restraining order issued pursuant
thereto, if any. In fact, the exit polls were actually conducted and reported by media without any
difficulty or problem.
ISSUE:

W/N the Comelec, in the exercise of its powers, can absolutely ban exit

polls
ABS-CBN: The holding of exit polls and the nationwide reporting of their results are valid exercises
of the freedoms of speech and of the press
COMELEC:

1)The issuance thereof was "pursuant to its constitutional and statutory powers to

promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and
maintain the secrecy and sanctity of the ballot."
2)It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and
that the surveys were designed "to condition the minds of people and cause confusion as to who are
the winners and the losers in the election," which in turn may result in "violence and anarchy."

3)"exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as
the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the
Constitution and relevant provisions of the Omnibus Election Code. It submits that the
constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State
in the legitimate exercise of its police power," such as in the present case.
4) "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the
community or it has a dangerous tendency." It then 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 x x x 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."
SUPREME COURT:

The COMELEC Resolution on exit polls ban is nullified and set aside.

1) Clear and present danger of destroying the integrity of electoral processes

Speculative and 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.
The holding and the reporting of the results of exit polls cannot undermine those of the elections,
since the former is only part of the latter. If at all, the outcome of one can only be indicative of the
other.
2) Overbroad
The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder
and confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not.[44] Concededly, the Omnibus Election Code prohibits disruptive behavior
around the voting centers.[45] There is no showing, however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create disorder or confuse the
voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on the

voters' answers to the survey questions will forever remain unknown and unexplored. Unless the ban
is restrained, candidates, researchers, social scientists and the electorate in general would be
deprived of studies on the impact of current events and of election-day and other factors on voters'
choices.
3) Violation of Ban Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other
persons, from making copies thereof, or from putting distinguishing marks thereon so as to be
identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is
the association of voters with their respective votes, for the purpose of assuring that the votes have
been cast in accordance with the instructions of a third party. This result cannot, however, be
achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they
have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose
not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.
An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by confidentially asking
randomly selected voters whom they have voted for, immediately after they have officially cast their
ballots. The results of the survey are announced to the public, usually through the mass media, to
give an advance overview of how, in the opinion of the polling individuals or organizations, the
electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11,
1998 elections.

Babst vs. National Intelligence Board [GR L-62992, 28 September 1984] Resolution En Banc,
Plana (J): 6 concur, 2 concur in result, 2 on leave, 1 concur in separate opinion, 2 dissent in
separate opinions
Facts: Arlene Babst, Odette Alcantara, Ceres P. Doyo, Jo-Ann Q. Maglipon, Domini TorrevillasSuarez, Lorna Kalaw-Tirol, Cielo Buenaventura, Sylvia Mayuga, Sheila S. Coronel, et al. are
columnists, feature article writers and reporters of various local publications. At different dates since
July 1980, some of them have allegedly been summoned by military authorities who have subjected
them to sustained interrogation on various aspects of their works, feelings, sentiments, beliefs,
associations and even their private lives. Aside from the interrogations, a criminal complaint for libel
was filed by Brig. Gen. Artemio Tidier, Jr. on 9 February 1983 with the Office of the City Fiscal,
Manila, against Domini Torrevillas-Suarez, editor of the Panorama, and Ma. Ceres Doyo based on
an article written by Doyo and published in the 28 March 1982 issue of the Panorama, on which the
author had been interrogated by Brig. Gen. Wilfredo Estrada (Ret.), Col. Renato Ecarma, NBI Asst.
Director Ponciano Fernando, Col. Balbino Diego, Col. Galileo Kintanar, Col. Eustaquio Peralta, et. al.
The complaint included an staggering P10 million claim for damages. (An information for libel has
since been filed with the Regional Trial Court of the National Capital Region against Suarez and
Doyo.) On 3 March 1983, Babst, et. al. filed a petition for prohibition with preliminary injunction,
which was superseded by the amended and supplemental petition for prohibition with preliminary
injunction, seeking to prohibit the respondents (a) from issuing subpoenas or letters of invitation to
Babst, et. al. and interrogating them, and (b) from filing libel suits on matters that have been the
subject of inquiry by the National Intelligence Board (NIB).
Issue: Whether the issuance by the NIB of letters of invitation to Babst, et.al., their subsequent
interrogation, and the filing of libel suits against Suarez and Dayo, are illegal and unconstitutional as
they are violative of the constitutional guarantee of free expression since they have the effect of
imposing restrictive guidelines and norms on mass media.
Held: Prohibition will not issue in respect of the libel charges now pending in court against Suarez
and Doyo and similar suits that might be filed. The writ of prohibition is directed against a tribunal,
board or person acting without or in excess of jurisdiction or with grave abuse of discretion vis-a-vis
certain proceedings pending before it. The libel cases adverted to are not pending before the NIB or
any other respondent. Further, the issue of validity of the libel, charges by reason of their alleged
collision with freedom of expression, is a matter that should be raised in the proper forum, i.e.,
before the court where the libel cases are pending or where they may be filed. The same rule
applies to the issue of admissibility as evidence of matters that have been elicited in the course of an
inquiry or interrogation conducted by the NIB, which Babst, et. al. claim to have been illegally
obtained. Finally, the right to seek redress when libeled is a personal and individual privilege of the
aggrieved party, and no one among the officials has the authority to restrain any of his subordinates
who has been libeled from vindicating his right by instituting a libel suit. Brig. Gen. Tadiar has filed
the libel case against Suarez and Doyo in his personal capacity. Moreover, he is not even a member
of the NIB. And the NIB does not appear to have anything to do with Gen. Tadiar's private right to
complain of libel.

Espuelas vs. People [GR L-2990, 17 December 1951] En Banc, Bengzon (J): 4 concur, 1 concurs
in result, 1 concurs in separate opinion
Facts: Between June 9 and June 24, 1947, in the town of Tagbilaran, Bohol, Oscar Espuelas y
Mendoza had his picture taken, making it to appear as if he were hanging lifeless at the end of a
piece of rope suspended from the limb of a tree, when in truth and in fact, he was merely standing
on a barrel. After securing copies of his photograph, Espuelas sent copies of same to several
newspapers and weeklies of general circulation, not only in the Province of Bohol but also
throughout the Philippines and abroad, for their publication with a suicide note or letter, wherein he
made to appear that it was written by a fictitious suicide, Alberto Reveniera and addressed to the
latter's supposed wife, stating therein in part that "if someone asks you why I committed suicide, tell
them I did it because I was not pleased with the administration of Roxas. Tell the whole world about
this. And if they ask why I did not like the administration of Roxas, point out to them the situation in
Central Luzon, the Hukbalahaps. Tell them about Julio Guillen and the banditry of Leyte. Dear wife,
write to President Truman and Churchill. Tell them that here in the Philippines our government is
infested with many Hitlers and Mussolinis. Teach our children to burn pictures of Roxas if and when
they come across one. I committed suicide because I am ashamed of our government under Roxas.
I cannot hold high my brows to the world with this dirty government. I committed suicide because I
have no power to put under Juez de Cuchillo all the Roxas people now in power. So, I sacrificed my
own self." Espuelas was charged for violating Article 142 of the Revised Penal Code, which punishes
those who shall write, publish or circulate scurrilous libels against the Government of the Philippines
or any of the duly constituted authorities thereof or which suggest or incite rebellious conspiracies or
riots or which tend to stir up the people against the lawful authorities or to disturb the peace of the
community. Espuelas admitted the fact that he wrote the note or letter and caused its publication in
the Free Press, the Evening News, the Bisaya, Lamdang and other local periodicals and that he had
impersonated one Alberto Reveniera by signing said pseudonymous name in said note or letter and
posed himself as Alberto Reveniera in a picture taken wherein he was shown hanging by the end of
a rope tied to a limb of a tree. Espuelas was, after trial, convicted in the Court of First Instance of
Bohol of a violation of the above article. The conviction was affirmed by the Court of Appeals.
Espuelas appealed.
Issue: Whether sedition laws unnecessarily curtain the citizens freedom of expression.
Held: The freedom of speech secured by the Constitution "does not confer an absolute right to
speak or publish without responsibility whatever one may choose." It is not "unbridled license that
gives immunity for every possible use of language and prevents the punishment of those who abuse
this freedom." So statutes against sedition have always been considered not violative of such
fundamental guaranty, although they should not be interpreted so as to unnecessarily curtail the
citizen's freedom of expression to agitate for institutional changes. Not to be restrained is the
privilege of any citizen to criticize his government and government officials and to submit his criticism
to the "free trade of ideas" and to plead for its acceptance in "the competition of the market."
However, let such criticism be specific and therefore constructive, reasoned or tempered, and not a
contemptuous condemnation of the entire government set-up. Such wholesale attack is nothing less
than an invitation to disloyalty to the government. Herein, no particular objectionable actuation of the

government was made in the article. It is called dirty, it is called a dictatorship, it is called shameful,
but no particular omissions or commissions are set forth. Instead the article drips with male-violence
and hate towards the constituted authorities. It tries to arouse animosity towards all public servants
headed by President Roxas whose pictures Espuelas would burn and would teach the younger
generation to destroy. Analyzed for meaning and weighed in its consequences the article cannot fail
to impress thinking persons that it seeks to sow the seeds of sedition and strife. The infuriating
language is not a sincere effort to persuade, what with the writer's simulated suicide and false claim
to martyrdom and what with its failure to particularize. When the use of irritating language centers
not on persuading the readers but on creating disturbance, the rationable of free speech can not
apply and the speaker or writer is removed from the protection of the constitutional guaranty.
Although it be argued that the article does not discredit the entire governmental structure but only
President Roxas and his men; still, article 142 punishes not only all libels against the Government
but also "libels against any of the duly constituted authorities thereof." The "Roxas people" in the
Government obviously refer at least to the President, his Cabinet and the majority of legislators to
whom the adjectives dirty, Hitlers and Mussolinis were naturally directed. On this score alone the
conviction could be upheld. To top it all, Espuelas proclaimed to his readers that he committed
suicide because he had "no power to put under juez de cuchillo all the Roxas people now in power."
Knowing, that the expression Juez de Cuchillo means to the ordinary layman as the Law of the
Knife, a "summary and arbitrary execution by the knife", the idea intended by Espuelas to be
conveyed was no other than bloody, violent and unpeaceful methods to free the government from
the administration of Roxas and his men. The meaning, intent and effect of the article involves
maybe a question of fact, making the findings of the court of appeals conclusive upon the Supreme
Court.

G.R. No. L-33615 April 22, 1977

MANUEL ELIZALDE, FRED J. ELIZALDE, PRUDENCIO R. EUROPA, petitioners,
vs.
HON. MARIO J. GUTIERREZ, Presiding Judge, CFI-Ilocos Sur, Branch III, and PEOPLE OF THE
PHILIPPINES, represented in this instance by JESUS F. GUERRERO, Provincial Fiscal of Ilocos
Sur, respondents.

FERNANDO, J:
It was the refusal of respondent Judge Mario J. Gutierrez 1 to grant motion to quash of petitioners, who
were the accused in a prosecution for libel, notwithstanding the invocation of their constitutional right to
freedom of expression 2 that led to this suit for certiorari and prohibition. All that could be alleged in the
information against them was the publication in the Evening News, a newspaper of general circulation, of
an item reproducing in full a dispatch from the Philippine News Service, a reputable news-gathering
agency. It summarized the testimony of Jaime Jose in a pending rape case wherein the name of Vincent
Crisologo, the offended party in the information for libel, was mentioned. This excerpt from the recent
case of Bocobo v. Estanislao 3 comes to mind: "This is contrary to the legal tradition of the Philippines
dating back to the landmark case of United States v. Bustos, where Justice Malcolm emphasized that to
prevent dilution of the constitutional right to free speech and free press, every libel prosecution should be
tested by the rigorous and exacting standard of whether or not it could be violative of such fundamental
guarantee. 4 It is easily understandable then why in the motion to quash, the main reliance was on the
Bustos doctrine, although other grounds were alleged as warranting the dismissal of the
information. 5 When respondent Judge ignored such a fundamental constitutional principle, the proper
basis for a certiorari and prohibition proceeding was laid. Petitioners are entitled to the remedies sought.
The alleged offending news item was a reproduction of a news item coming from the Philippine News
Service, furnished the Evening News, of which petitioners Manuel Elizalde and Fred J. Elizalde were the
Publisher and Assistant Publisher and Prudencio R. Europa was the Editor-in-Chief. It reads thus: "Jaime
Jose implicated Tuesday Vincent Crisologo, son of Rep. Floro Crisologo ( N, Ilocos Sur ) as among his
four companions the night of the alleged rape of a former nightclub hostess last year. Jose, one of four
principal accused in the celebrated Maggie de la Riva rape case, denied, however, the charges of forcible
abduction with rape and robbery filed against him and his companions by Zenaida de la Cruz, 28, and
Araceli Sy, both nightclub hostesses. Jose mentioned Vincent Crisologo as among his companions while
testifying in his defense before Judge Francisco de la Rosa of the local court of first instance. Jose
claimed that both Zenaida and Araceli went voluntarily with his group to the Queen's Court motel here in
the early morning of July 4, 1966. Jose said Zenaida and Crisologo went to a room together. However,
Jose said, the two girls complained when he and his companions failed to give the girls any
money. ...6 This was the continuation of such news item: "The girls charged that they were robbed by Jose
and his friends of cash and jewelry inside the hotel. In their original complaint filed with the fiscal's office,
the two girls named Vincent Crisologo as among the accused. The taxi driver, whose vehicle was used by
Miss de la Cruz, also Identified Vincent Crisologo among the five youths in the incident. But the girls later
executed an affidavit saying that they were mistaken in Identifying Crisologo as among the five men who

allegedly abused them. Jose testified that he and Tillman were about to go to a party in Mandaluyong,
Rizal, on the night of July 3, 1966, when Crisologo with three companions arrived. Jose said that young
Crisologo wanted to borrow his car since his car would be used by his congressman father. Jose said that
after the party they proceeded to Pasay City where Crisologo and a companion went to Bayside nightclub
to look for Crisologo's girl friend. Minutes later, Crisologo and his friend went out of the club and they all
proceeded to the Barbecue Plaza where they drank liquor. Shortly before 2 a.m., July 4, the group
allegedly started for home in Jose's two-toned Mercedez Benz car. On the way, a taxicab overtook them.
The cab allegedly carried Zenaida and Araceli. Jose said that Zenaida called Vincent and shouted for
them to stop. They then proceeded to Queen's Court motel, Jose said. 7 The alleged offended party,
according to the information filed by respondent Provincial Fiscal, Jesus F. Guerrero, is Vincent Crisologo.
The information is dated February 5, 1970. Thereafter, there was a motion to quash filed by petitioners on
August 14, 1970. An opposition was then filed by an assistant provincial fiscal on September 25, 1970.
The order by respondent Judge denying the motion to quash came on December 17, 1970. An extensive
motion for reconsideration submitted on February 23, 1971 having proved futile in view of an order of
denial a month later from respondent Judge, this petition for certiorari and prohibition was filed with this
Court.
As noted at the outset, certiorari and prohibition lie.
1. Petitioners were prosecuted for libel because the Evening News carried in its issue of September 1,
1967 a news item furnished it by the Philippine News Service. It was a faithful and accurate summary of
what was testified to by a witness in a pending rape case. That was all. The name of the alleged offended
party, Vincent Crisologo, was repeatedly mentioned in such testimony. It would have been a plain and
simple distortion thereof if such a fact were omitted by the Philippine News Service. The Evening News in
turn published such item. This is a case therefore that falls squarely within the protection of the free press
provision found in the Constitution. That such news item possessed a defamatory aspect is beside the
point. It cannot justify a prosecution for libel. Even prior to the 1935 Constitution, under the previous
organic act, the Philippine Autonomy Act of 1916, which contained a similar provision mandating a free
press, this Court, in the epochal Malcolm opinion in United States v. Bustos 8 decided almost sixty years
ago, to be precise on March 8, 1918, enunciated the principle that the freedom of the press is
"so sacred to the people of these Islands and won at so dear a cost, [that it] should now be protected and
carried forward as one would protect and preserve the covenant of liberty itself." 9 Thus it is clear that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free
press guarantee. This Court has since then been committed to such an authoritative doctrine. 10 The
opinion of Chief Justice Paras in Quisumbing v. Lopez, 11 a 1955 decision, is even more explicit on the
matter. Thus: "The newspapers should be given such leeway and tolerance as to enable them to
courageously and effectively perform their important role in our democracy. In the preparation of stories,
press reporters and edition usually have to race with their deadlines; and consistently with good faith and
reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or
imperfection in the choice of words. 12At the beginning of this decade, this Court in Lopez v. Court of
Appeals 13 expressed its commitment to such a principle in these words: "No inroads on press freedom
should be allowed in the guise of punitive action visited on what otherwise could be characterized as libel
whether in the form of printed words or a defamatory imputation resulting from the publication of
respondent's picture with the offensive caption as in the case here complained of. ... If the cases mean
anything at all then, to emphasize what has so clearly emerged, they call for the utmost care on the part
of the judiciary to assure that in safeguarding the interest of the party allegedly offended, a realistic
account of the obligation of a news media to disseminate information of a public attendant on the
business of publishing cannot be ignored. 14

2. To be more specific, no culpability could be imputed to petitioners for the alleged offending publication
without doing violence to the concept of privileged communication implicit in freedom of the press. As was
so well put by Justice Malcolm in Bustos: "Public policy, the welfare of society, and the orderly
administration of government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of privilege. 15 He then quoted
this excerpt from an American Supreme Court decision,Abbott v. National Bank of Commerce: "The
doctrine of privileged communication rests upon public policy, 'which looks to the free and unfettered
administration of justice, though as incidental result, it may in some instances afford an immunity to the
evil-disposed and malignant slanderer. 16 Considering how ample is the protection afforded a person
alleged to have injured another's reputation, it appears quite obvious that respondent Judge did infringe
on the constitutional right of petitioners to press freedom when it denied the motion to quash. He
apparently was equally unaware of this relevant paragraph in the Malcolm opinion: "A privileged
communication should not be subjected to microscopic examination to discover grounds of malice or
falsity. Such excessive scrutiny would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. 17 By no stretch of the imagination then could it be
said that the Philippine News Service and the Evening News exhibited mala fides by the mere fact of
narrating in a news item the testimony of a witness in a rape case just because it did cast a reflection on
the conduct of a third party. The prosecution in its pleadings before the lower court could not deny the
accuracy of what was reported. Petitioners then ought not to have been subjected to the annoyance,
inconvenience, and trouble of going to a distant province and defend themselves against a charge
unwarrant under well-settled norms of constitutional dimension. The doctrine of privileged communication
moreover is explicitly provided for in the Revised Penal Code, as an exception to the general principle
that every defamatory imputation is presumed to be malicious, even if it is true in the absence of "good
intention" and "justifiable motive" thus: "A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or
of any statement, report, or speech delivered in said proceedings, or of any other act performed by public
officers in the exercise of their functions. 18
3. There being a denial of a constitutional right, a jurisdictional issue was raised. It has been a well-settled
doctrine since Conde v. Rivera, 19 that under such circumstances, the competence of a court to continue
with a pending case ceases. 20 Nor is it to indulge merely in general propositions. In People v.
Andres, 21 this Court precisely sustained a court of first instance when it quashed an information for libel,
the accused, respondent Andres, relying on press freedom to show that the fact charged do not constitute
an offense. As pointed out in the opinion of Justice Barrera, it was argued by the prosecution "that the trial
court erred in dismissing the case on a mere motion to quash, contending that the trial judge's conclusion
on the face of the information that defendant-appellee was prompted only by good motives assumes a
fact to he proved, and that the alleged privileged nature of defendant-appellee's publication is a matter of
defense and is not a proper ground for dismissal of the complaint for libel ... ." 22 That contention was
rejected in this wise: "While there is some point to this contention, yet when in the information itself it
appears, as it does in the present case, that the communication alleged to be libelous is contained in an
appropriate pleading in a court proceeding, the privilege becomes at once apparent and defendant need
not wait until the trial and produce evidence before he can raise the question of privilege. And if added to
this, the questioned imputations appear, as they seem in this case, to be really pertinent and relevant to
defendant's plea for reconsideration based on complainant's supposed partiality and abuse of power from
which defendant has a right to seek relief in vindication of his client's interest as a litigant in complainant's
court, it would become evident that the facts thus alleged in the information would not constitute an
offense of libel. 23 Similarly, a motion to quash was sustained in the later case of People v. Alvarez, 24 In
the opinion of Justice Regala, it was pointed out: "As heretofore stated, this Court has adopted a liberal
attitude in favor of the writer in matter of the relevancy of allegedly libelous statements in judicial

pleadings. In U.S. v. Bustos, et al., 37 Phil. 731, this Court found occasion to express ills opinion on
privileged communications, to wit: ... A privileged communication should not be subjected to miscroscopic
examination to discover grounds of malice or falsity. Such excessive scrunity would defeat the protection
which the law throws over privileged communication. ... It is worthy to mention here that in the information
for libel, there is no allegation of the irrelevancy or impertinency of the questioned statements to the
cause. Considering the above, We are of the opinion and so hold that no error was committed by the
lower court in considering the questioned remarks of the appellee as privileged and in consequently
dismissing the information for lack of cause of action. 25 In a third case, People v. Aquino, 26 reference was
made toPeople v. Andres to demonstrate that it is fitting and appropriate for a court of first instance to
dismiss an information on a motion to quash where the privileged character of the, alleged offending
publication is apparent. Respondent Judge ought not to have betrayed lack of sensitivity to the categorical
pronouncements of this Court in the above three decisions that call for application,
4. Nor is a different conclusion called for just because the heading of the news item arising from the
testimony of Jaime Jose was worded thus: "LINK CRISOLOGO SON TO PASAY RAPE CASE." How else
could it have been expressed? That was to portray with accuracy what was contained in the news item.
What was testified to was to that effect. It succinctly set forth the facts. There was no attempt to
sensationalize. The tone is both neutral and objective. Again there is relevance to the following excerpt
from Quisumbing v. Lopez: "The Court of Appeals found 'that the context of the article in question, is a
fair, impartial and true report of official or public proceeding authorized by law. The news item was the
result of a press release in connection with an official investigation of the Anti-Usury Division, N. B. I., and
was a substantial, if not a faithful reproduction of the said press release which was, in turn, an accurate
report of the official proceedings taken by the Anti-Usury Division. The article merely reported a raid on
the 'business offices of three alleged money lenders;' and related the steps actually taken or to be taken
by the proper officials relative to the investigation. It did not go beyond the actual report of official
actuations. The theory of the petitioner, stripped of incidentals, is that while the body of the news item
may be considered as being fair, impartial and accurate report of an official investigation of the Anti-Usury
Division of the National Bureau of Investigation and therefore privileged, its headline NBI MEN RAID
OFFICES OF 3 CITY USURERS, admittedly not forming part of the basic press release but merely added
by the respondents, is libelous per se, because the petitioner had thereby been branded and condemned
as a 4 usurer' when as a matter of fact no criminal charge was even filed against him for the crime of
usury in any court of justice. 27Nonetheless, the newspaper publisher was not held liable. The Chief
Justice then explained why: "We are of the opinion that the appealed decision is correct. The petitioner,
while assuming that the article in question is privileged, argues that the headline (libelous per se) added
by the respondents rendered the same actionable, because said headline is not borne out by the facts
recited in the context. We believe that nobody reading the whole news item would come to the conclusion
that the petitioner had been accused or convicted of usury. We agree with the Court of Appeals that the
headline complained of may fairly be said to contain a correct description of the news story. The fact that
the raid was conducted by anti-usury agents following receipt of a complaint against the petitioner and
two others, coupled with the announcement by the Chief of the NBI Anti-Usury Division that criminal
action would be filed in the city fiscal's office, naturally would lead one to think that the persons involved
were usurers. Nothing in the headline or the context of the article suggested the Idea that the petitioner
was already charged with or convicted of the crime of usury. 28
WHEREFORE, the writ of certiorari prayed for is granted and the order of respondent Judge denying the
motion to quash of December 17, 1970 as well as the order of respondent Judge of March 25, 1971
denying the motion for reconsideration filed by petitioners are set aside and nullified. The writ of
prohibition is likewise granted and the restraining order issued on June 10, 1971 made permanent,

respondent Judge or any person who may have taken his place being prohibited from taking any action in
Criminal Case No. 11-V for Libel except for the purpose of dismissing the same. No costs.
Antonio and Concepcion Jr., JJ., concur.

Lopez vs. Court of Appeals [GR L-26549, 31 July 1970] First Division, Fernando (J): 4
concur, 2 concur in result, 1 dissents in separate opinion
Facts: In the early part of January 1956, there appeared on the front page of The Manila
Chronicle, of which Eugenio Lopez was the publisher, as well as on other dailies, a news story of
a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz by name, sending a distress
signal to a passing United States Airforce plane which in turn relayed the message to Manila. He
was not ignored, an American Army plane dropping on the beach of an island an emergencysustenance kit containing, among other things, a two-way radio set. He utilized it to inform
authorities in Manila that the people in the place were living in terror, due to a series of killings
committed since Christmas of 1995. Losing no time, the Philippines defense establishment
rushed to the island a platoon of scout rangers led by Major Wilfredo Encarnacion. Upon arriving
at the reported killermenaced Babuyan Claro, however, Major Encarnacion and his men found,
instead of the alleged killers, a man, the same Fidel Cruz, who merely wanted transportation
home to Manila. In view of this finding, Major Wilfredo Encarnacion branded as a "hoax," to use
his own descriptive word, the report of Fidel Cruz. That was the term employed by the other
newspapers when referring to the incident. This Week Magazine of the Manila Chronicle, then
edited by Juan T. Gatbonton, devoted a pictorial article to it in its issue of 15 January 1956.
Mention was made that while Fidel Cruz story turned out to he false, if brought to light the

misery of the people living in that place, with almost everybody sick, only two individuals able
to read and write, food and clothing being scarce. Then in the 29 January 1956 issue of This
Week Magazine, the "January News Quiz" included an item on the central figure in what was
known as the Calayan Hoax, who nevertheless did the country a good turn by calling the
government's attention to that forsaken and desolate corner of the Republic. Earlier in its Special
Year End Quiz appearing in its issue of 18 January 1956, reference was made to a health
inspector who suddenly felt "lonely" in his isolated post, cooked up a story about a murderer
running loose on the island of Calayan so that he could be ferried back to civilization. He was
given the appellation of "Hoax of the Year." The magazine on both occasions carried
photographs of the person purporting to be Fidel Cruz. Unfortunately, the pictures that were
published on both occasions were that of Fidel G. Cruz, a businessman-contractor from Santa
Maria, Bulacan. It turned out that the photographs of Cruz and that of Fidel Cruz, sanitary
inspector, were on file, in the library of the Manila Chronicle in accordance with the standard
procedure observed in other newspaper offices, but when the news quiz format was prepared, the
two photographs were inadvertently switched. As soon, however, as the inadvertent error was
brought to the attention of Lopez and Gatbonton, the following correction was immediately
published in This Week Magazine on January 27, 1957: "While we were rushing to meet the
deadline for January 13th issue of This Week, we inadvertently published the picture of former
Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in 'Our Own Who's
Who feature in the Year End Quiz' of This Week in lieu of the health inspector Fidel Cruz, who
was connected with a story about a murderer running loose on Calayan Island. We here express
our profound regrets that; such an error occurred." Together with the foregoing correction, Lopez
and Gatbonton published the picture of Fidel Cruz; the photographs and the correction moreover
were enclosed by four lines, the type used was bolder than ordinary, and the item was placed in a
conspicuous place in order to call the attention of the readers to such amends being made. The
businessman Fidel G. Cruz sued Lopez and Gatbonton in the Court of First Instance of Manila
for the recovery of damages alleging the defamatory character of the above publication of his
picture. After trial duly had, he was awarded P5,000 as actual damages, another P5,000 as moral
damages, and P1,000 for attorney's fees. That judgment was affirmed on appeal to the appellate
Court. Lopez and Gatbonton filed the petition for certiorari.
Issue: Whether the claim of freedom of the press negates Lopez and Gatbontons liability
arising from libel.
Held: A libel was defined as a "malicious defamation, expressed either in writing, printing, or by
signs or pictures, or the like, tending to blacken the memory of one who is dead or to impeach
the honesty, virtue, or reputation, or publish the alleged or natural defects of one who is alive,
and thereby expose him to public hatred, contempt, or ridicule." There was an express provision
in such legislation for a tort or a quasi-delict action arising from libel. There is reinforcement to
such a view in the new Civil Code providing for the recovery of moral damages for libel, slander
or any other form of defamation. According to the standard treatise of Newell on Slander and

Libel: "Publication of a person's photograph in connection with an article libelous of a third

person, is a libel on the person whose picture is published, where the acts set out in the article are
imputed to such person." Why libel law has both a criminal and a civil aspect is explained by
Hale in his Law of the Press thus: "On the one hand, libeling a person results in depriving him of
his good reputation. Since reputation is a thing; of value, truly rather to be chosen than great
riches, an impairment of it is a personal wrong. To redress this personal wrong money damages
are awarded to the injured person. On the other hand, the publication of defamatory statements
tends strongly to induce breach of the peace by the person defamed, and hence is of peculiar
moment to the state as the guardian of the public peace. Viewed from this angle, libel is a crime,
and as such subjects the offender to a fine or imprisonment." No inroads on press freedom should
be allowed in the guise of punitive action visited in what otherwise could be characterized as
libel whether in the form of printed words or a defamatory imputation resulting from the
publication of Cruz's picture with the offensive caption as in complained of. This is not to deny
that the party responsible invites the institution either of a criminal prosecution or a civil suit. It
must be admitted that what was done did invite such a dire consequence, considering the value
the law justly places on a man's reputation. This is merely to underscore the primacy that
freedom of the press enjoys. It ranks rather high in the hierarchy of legal values. If the cases
mean anything at all then, to emphasize what has so clearly emerged, they call for the utmost
care on the part of the judiciary to assure that in safeguarding the interest of the party allegedly
offended, a realistic account of the obligation of a news media to disseminate information of a
public character and to comment thereon as well as the conditions attendant on the business of
publishing cannot be ignored. However, the correction promptly made by Lopez and Gatbonton
would thus call for a reduction in the damages awarded. It should be noted that there was no
proof of any actual pecuniary loss arising from the above publication. It is worthwhile to recall
what Justice Malcolm referred to as the tolerant attitude on the part of appellate courts on this
score, the usual practice being "more likely to reduce damages for libel than to increase them."

PEOPLES JOURNAL et. al. vs. FRANCIS THOENEN

G.R. No. 143372
December 13, 2005
Facts: On 30 September 1990, a news item appeared in the Peoples Journal claiming that a certain
Francis Thoenen, a Swiss national who allegedly shoots wayward neighbors pets that he finds in his
domain. It also claimed that BF Homes residents, in a letter through lawyer Atty. Efren Angara,
requested for the deportation of Thoenen to prevent the recurrence of such incident in the future.

Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community.
He is seeking for damages.
The petitioners admitted publication of the news item, ostensibly out of a social and moral duty to
inform the public on matters of general interest, promote the public good and protect the moral public
(sic) of the people, and that the story was published in good faith and without malice.
Issue: Whether or not the news report fall under privileged communication and therefore protected
by the constitutional provision on freedom of speech.
Held: The right of free speech is not absolute. Libel is not protected speech. In the instant case,
even if we assume that the letter written by Atty. Angara is privileged communication, it lost its
character when the matter was published in the newspaper and circulated among the general
population, especially since the individual alleged to be defamed is neither a public official nor a
public figure.
Moreover, the news item contained falsehoods on two levels. First, the BF Homes residents did not
ask for the deportation of Thoenen, more so because the letter of the Atty. Anagara was a mere
request for verification of Thoenens status as a foreign resident. The article is also untrue because
the events she reported never happened. Worse, the main source of information, Atty. Efren Angara,
apparently either does not exist, or is not a lawyer.

There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless
error materially advances societys interest in uninhibited, robust, and wide-open debate. Calculated
falsehood falls into that class of utterances which are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality The knowingly false statement
and the false statement made with reckless disregard of the truth, do not enjoy constitutional
protection.

Texas vs. Johnson [491 US 397, 21 June 1989] Brennan (J)

Facts: While the Republican National Convention was taking place in Dallas in 1984, Gregory Lee
Johnson participated in a political demonstration dubbed the "Republican War Chest Tour." As
explained in literature distributed by the demonstrators and in speeches made by them, the purpose
of this event was to protest the policies of the Reagan administration and of certain Dallas-based
corporations. The demonstrators marched through the Dallas streets, chanting political slogans and
stopping at several corporate locations to stage "dieins" intended to dramatize the consequences of
nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted

plants, but Johnson himself took no part in such activities. He did, however, accept an American flag
handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted
buildings. The demonstration ended in front of Dallas City Hall, where Johnson unfurled the
American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors
chanted: "America, the red, white, and blue, we spit on you." After the demonstrators dispersed, a
witness to the flag burning collected the flag's remains and buried them in his backyard. No one was
physically injured or threatened with injury, though several witnesses testified that they had been
seriously offended by the flag burning. Of the approximately 100 demonstrators, Johnson alone was
charged with a crime. The only criminal offense with which he was charged was the desecration of a
venerated object in violation of Tex. Penal Code Ann. 42.09(a)(3) (1989). After a trial, he was
convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals for the Fifth
District of Texas at Dallas affirmed Johnson's conviction but the Texas Court of Criminal Appeals
reversed holding that the State could not, consistent with the First Amendment, punish Johnson for
burning the flag in these circumstances.
Issue: Whether publicly burning an American flag as a means of political protest is a part of the
constitutional guarantee of freedom of expression.
Held: The First Amendment literally forbids the abridgment only of "speech," but the Court has long
recognized that its protection does not end at the spoken or written word. While the Court has
rejected "the view that an apparently limitless variety of conduct can be labeled `speech' whenever
the person engaging in the conduct intends thereby to express an idea," it has acknowledged that
conduct may be "sufficiently imbued with elements of communication to fall within the scope of the
First and Fourteenth Amendments." In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, the Court has asked whether "an
intent to convey a particularized message was present, and [whether] the likelihood was great that
the message would be understood by those who viewed it." Especially pertinent to the case are the
Court's decisions recognizing the communicative nature of conduct relating to flags. Attaching a
peace sign to the flag, refusing to salute the flag, Barnette, and displaying a red flag, the Court has
held, all may find shelter under the First Amendment. Pregnant with expressive content, the flag as
readily signifies this Nation as does the combination of letters found in "America." The Court has not
automatically concluded, however, that any action taken with respect to the flag is expressive.
Instead, in characterizing such action for First Amendment purposes, the Court has considered the
context in which it occurred. Herein, Johnson burned an American flag as part - indeed, as the
culmination - of a political demonstration that coincided with the convening of the Republican Party
and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this
conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his
reasons for burning the flag as follows: "The American Flag was burned as Ronald Reagan was
being renominated as President. And a more powerful statement of symbolic speech, whether you
agree with it or not, couldn't have been made at that time. It's quite a just position [juxtaposition]. We
had new patriotism and no patriotism." In these circumstances, Johnson's burning of the flag was
conduct "sufficiently imbued with elements of communication," to implicate the First Amendment.
Where "speech" and "nonspeech" elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech element can justify
incidental limitations on First Amendment freedoms, the applicability of O'Brien's relatively lenient
standard is limited to those cases in which "the governmental interest is unrelated to the suppression
of free expression." In stating, moreover, that O'Brien's test "in the last analysis is little, if any,

different from the standard applied to time, place, or manner restrictions," the Court has highlighted
the requirement that the governmental interest in question be unconnected to expression in order to
come under O'Brien's less demanding rule. The State offers two separate interests to justify this
conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and
national unity. The Court hold that the first interest is not implicated on this record and that the
second is related to the suppression of expression. A principal "function of free speech under our
system of government is to invite dispute. It may indeed best serve its high purpose when it induces
a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to
anger." It would be odd indeed to conclude both that "if it is the speaker's opinion that gives offense,
that consequence is a reason for according it constitutional protection," and that the government
may ban the expression of certain disagreeable ideas on the unsupported presumption that their
very disagreeableness will provoke violence. Thus, the Court not permitted the government to
assume that every expression of a provocative idea will incite a riot, but have instead required
careful consideration of the actual circumstances surrounding such expression, asking whether the
expression "is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action." Johnson's expressive conduct does not fall within that small class of "fighting
words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of
the peace." No reasonable onlooker would have regarded Johnson's generalized expression of
dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation
to exchange fisticuffs. Forbidding criminal punishment for conduct such as Johnson's will not
endanger the special role played by our flag or the feelings it inspires. Nobody can suppose that this
one gesture of an unknown man will change our Nation's attitude towards its flag. Indeed, Texas'
argument that the burning of an American flag "is an act having a high likelihood to cause a breach
of the peace," and its statute's implicit assumption that physical mistreatment of the flag will lead to
"serious offense," tend to confirm that the flag's special role is not in danger; if it were, no one would
riot or take offense because a flag had been burned. The flag's deservedly cherished place in our
community will be strengthened, not weakened, by the Court's holding today. The decision is a
reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the
conviction that our toleration of criticism such as Johnson's is a sign and source of our strength.
Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is
of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity that Texas
sees reflected in the flag - and it is that resilience that the Court reasserts today.