COMM 106 notes for midterm exam

 

COMM 106 General Takeaways

1. The Bill of Rights is a litany of what the government cannot do. These rights are inherent to human beings and called recognized rights; they are not given to us by the government.
2. But that is the general rule; there are exceptions when the government can regulate speech. Freedom is not absolute.
3. Look for the law. How should the Court rule? Look into whether the circumstance in the case is constitutional or not. For the most part, focus on the unconstitutional aspect of the cases.
4. Aquino invalidated the 1973 Constitution.
5. A revolution is always unlawful. It is extraconstitutional (not authorized by the Constitution or beyond its provisions)
6. Protests intentionally blocking traffic give the police the right to interfere.
7. There are parameters for the government to regulate, and the people to express themselves.
8. All the other rights should fall if you do not have the right to speak out.
9. Look for the interest of the government in the case. The burden is always on the government.
10. Instances where the Court justified prior restraint: war, obscene materials, speech tends to incite violence or national security - but the danger must be clear and present.
11. Fear must not be hypothetical. If it is hypothetical, then there can be no prior restraint.
12. Subsequent punishment is the proper remedy and not prior restraint.
13. There are symbolic speeches (e.g. burning of flag, throwing paint, tearing of cedula, destruction of property, covering Oble with cloth) but ask yourself if this protected speech… and refer to no. 9
14. Commercial speech < public interest speech
15. Misleading health claims can be regulated. Subjective claims in advertisements (e.g. No. 1 trusted brand in the country, Pinakalami sa Carcar) are given leeway as long as they are not destructive,
16. There is a dichotomy between TV and print. TV is accessible immediately to kids at home.
17. Regarding ethical hackers - nonetheless, without consent, you are still liable.
18. Wiretapping is illegal but it doesn't matter if it caught public interest (e.g. Garcia tapes, and NYT case)
19. You cannot ban spams but you may ignore them.
20. Factual claims are easier to detect than opinions.
21. There should be substantive evil regarding clear and imminent danger… not vague
22. You cannot censor (publications) but you can sue for libel so that the press involved can pay for damages = proper remedy
23. Take note of recognized limitations.

 

Ethics, Morality and Law

Law. Formal rules regarding how we behave as members of society. It has a narrower focus compared to morality and ethics. (What we must or must not do)

Morality. Informal framework of values, principles, beliefs of customs of living. Not often enforced by the state but by social pressures to conform to moral norms. (What should one do)

Ethics. It is a process of reflection where your decisions are shaped by your values, principles, and purpose rather than unthinking habits or social conventions. (What is good, right or meaningful in our lives)

Contractualist Approach in Ethics. Sees Ethics as the attempt to identify and justify principles that govern actions in general and actions within professions and fields of endeavor. Universal agreement is not the goal of Contractualism. It is tempered, however, by Cosmopolitanism.

Cosmopolitanism places great importance on universal principles of human rights, freedom and justice. The nationality, ethnicity, religion, class, race, or gender of a person (or group) is morally irrelevant to whether an individual is a member of humanity and comes under the protection of cosmopolitan principles.

 

 

 

 

 

 

 

Legal Terms

1.      Actual malice. Legal standard established by the Supreme Court for libel cases to determine when public officials or public figures may recover damages in lawsuits against the news media.

2.      Certiorari. A writ or order by which a higher court reviews a decision of a lower court.

3.      Mandamus. A court order compelling someone to execute a duty that they are legally obligated to complete.

4.      Merit. This refers to a claim which has a valid basis, setting forth sufficient facts from which the court could find a valid claim of deprivation of a legal right.

5.      Qualified Privilege. It is immunity (protection) from the penalty of a lawsuit, usually a lawsuit for defamation (paninirang-puri), for acts committed in the performance of a legal or moral duty and acts properly exercised and free from malice. If malice can be shown, qualified privilege is not a protection against defamation. Malice is doing something with the intention to do something wrong. In a defamation case, if someone is hurt by the actions of another, it’s usually not intentional. But malice in a defamation case would be knowing that the information is false but acting with “reckless disregard” for the truth.

6.      Libel. A public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, , condition, status or circumstances tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

In the crime of libel, which includes oral defamation, there is NO need for the prosecution to present evidence of malice. It is enough that the alleged defamatory or libelous statement be presented to the Court verbatim. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Freedom of Expression

●       It is available only insofar as it is exercised for the discussion of matters affecting the public interest.

Element of Freedom of Expression

·         Freedom from prior restraint or censorship

 

Article III, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

 

The doctrine of freedom of speech was formulated primarily for the protection of “core speech,” i.e. speech which communicates political, social or religious ideas.

 

Cases protecting national security and public order

●       In Burgos v. Chief of Staff, the search, padlocking and sealing of the offices of the Metropolitan Mail and We Forum by military authorities, resulting in the discontinuance of publication of the newspapers, was held to be prior restraint. It is in the nature of censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of Burgos et. al’s freedom to express themselves in print.

Legal basis: Article IV, Section 3 of the 1973 Constitution

➔      Rule of Law

➔      Warrants must describe the items to be seized.

➔      “No warrant shall issue but upon probable cause.”

➔      “Probable cause for  a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed.

Prudential Decree 885 as respondent’s argument is invalid; committing offense of subversion

 

●       Corro v. Lising was delivered in the same manner. The Supreme Court ruled that things to be seized MUST be particularly described. Search warrants authorizing seizure of all business transactions contravene the Bill of Rights as well (Stonehill v. Diokno).

Legal basis: Article IV, Section 3 of the 1973 Constitution

➔      Rule of Law

➔      Warrants must describe the items to be seized.

➔      No warrant shall issue but upon probable cause.

➔      “Probable cause for  a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in the connection with the offense are in the place sought to be searched. Mere generalization will not suffice”

➔      Article 142 of the Revised Penal Code as amended by PD 1385; Inciting acts of sedition

 

●      In New York Times v. United States, the Court held that prohibition of “prior restraint” is NOT absolute, although any system of prior restraint comes to court bearing a heavy presumption against its constitutionality, with which the government did NOT overcome in the case at bar such that: (1) The First Amendment leaves no room for government restraint on the press; (2) There was also NO statute that gave the government the power to ask the Court to stop the publication of materials; (3) There was NO proof provided by the government that severe consequences may happen, and; (4) the documents will NOT cause irreparable danger to the public.

Legal basis: First Amendment

➔      Congress make no law respecting an establishment of religion or prohibiting its free exercise

➔      It protects freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.  

➔     Press should be left free to publish news whatever the source is, without censorship, injunctions, and prior restraints.

 

●       In Near v. Minnesota, the exceptions to the prohibition of prior restraint is enumerated by the Court. The statute authorizing such proceedings is NOT consistent with the conception of the liberty of the press and is therefore unconstitutional. The statute CANNOT be justified by reason of fact that the “malicious, scandalous and defamatory” published matter is TRUE, and is published with GOOD MOTIVES AND FOR JUSTIFIABLE ENDS.

Legal basis: Fourteenth Amendment

●       The Minnesotan statute violates the fourth amendment because it infringes on the liberty of the press and free speech.

➔     Public Nuisance Law/Minnesota Law/Minnesota Gag Law

➔     Chapter 285 of the Session Laws of Minnesota for the year 1925.

➔     In the business of regularly and customarily producing, publishing, etc., an obscene, lewd and lascivious newspaper, magazine, or other periodical OR malicious, scandalous, and defamatory newspaper, magazine or other periodical is guilty of a nuisance, and authorizes suits, in the name of the State

 

      However, in some cases like…

●      Iglesia ni Cristo v. Court of Appeals, the Board of Review for Motion Pictures and Television (BRMPT) has the authority to review the petitioner's television program. But the Board acted with grave abuse of discretion when it gave an “X-rating” to the TV program on the ground of “attacks against another religion.” Such a classification can be justified only if there is a showing that the TV program would create a clear and present danger of an evil which the State ought to prevent. The episodes in question are protected under Art. III, Section 4 of the 1987 Consti. Likewise, Section 3 (c) of the PD 1986 suppresses the petitioner’s freedom of speech and interferes with the right to free exercise of religion. “Attacks against other religions” is NOT among the grounds as well to justify an order prohibiting the broadcast of the program.

1. PD No. 1986 in relation to Article 201 of the Revised Penal Code

➔      MTRCB is under the Office of the President-- mandated to regulate and classify movies, television programs, related publicly materials and/or promotional materials.

2. Section 3 of PD 1986

➔      Gives Board the power to screen, review and examine all television programs.

➔      It also has the power to approve, delete, and/or prohibit the exhibition and/or television broadcast of television programs. 

3. Legal basis: Article III, Section 4 of the 1987 Constitution

➔      Constitutional guarantee of free speech and expression.

➔      “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."

4. Article 3, Section 5 of the 1987 Constitution

➔      No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.

“Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.”

 

●       In Gonzales v. Comelec, the Court upheld the validity of the law which prohibited, EXCEPT during the prescribed election period, the making of speeches, announcements or commentaries for or against the election of any party or candidate for public office.

• Republic Act No. 4880 CANNOT be held unconstitutional (Revised Election Code)

➔      Section 50-A: early nominations of candidates for elective public offices.

➔      Section 50-B: early election campaigns or partisan political activities

➔      Prohibiting the too early nomination of candidates and limiting the period of election campaign or partisan political activity.

➔      Has a clear and present danger doctrine, there being substantive evil in elections

➔      Exercise of police power legislation in the state.

 

• Legal basis: Article III, Section 4 of the 1987 Constitution

➔      Constitutional guarantee of free speech and expression; and,

• Constitutional Provision

➔      No treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Supreme Court.

 

• cited Cabansag v. Fernandez two (2) tests
• Clear and present danger rule: the evil consequence of the comment or utterance must be extremely serious and the degree of imminence high before the utterance can be punished. The “danger” must not only be clear but also present. The danger must not only be probable but very likely inevitable.

➔      Dangerous tendency rule: the words uttered create a dangerous tendency which the state has the right to prevent, then such words are punishable.” It is not necessary that some definite or immediate acts of force, violence or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms.

 

➔     The governmental interest is unrelated to the suppression of free expression;

➔     The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

 

·         In United States v. O’Brien,

·         Legal basis: Government regulation; justified if:

1. it is within the constitutional power of the government;
2. It furthers an important or substantial governmental interest;
3. The governmental interest is unrelated to the suppression of free expression;
4. The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

·         1965 Amendment under Section 462(b)(3) of Universal Military Training and Service Act/ Selective Service Act.

·         “The act of burning a draft card does not implicate a substantial speech interest”- not protected by the First Amendment.

·         The governmental interest is unrelated to the suppression of free expression;

·         The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

 

·         Friedman v. Rogers

 

·         Legal basis: Commercial speech

Texas Optometry Act

➔      5.13(d): prohibited practice of optometry under trade names (constitutional)

➔      S2.02: requires that four of the six members of the Texas Optometry Board which regulates the practice of Optometry in the State, be members of the Texas Optometry Association, the professional organization of optometrists. (constitutional)

 

·         MTRCB v. ABS-CBN (Legarda)

·         Legal basis: Presidential Decree No. 1986 (Created MTRCB under President Marcos)

➔      Board is given the power to screen, review and examine all television programs.

➔      It also has the power to approve, delete, and/or prohibit the exhibition and/or television broadcast of television programs. 

➔     Section 7: Unauthorized showing or exhibition any motion picture, tv program or publicly material. In the exception of: motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels.

➔      Section 3 Chapter 3: All mentioned materials shall be subject to review by the board.

➔      Section 7 Chapter 4: Requirement for prior review.

➔      P.D. 1986 – it is a public affairs program, not news reel.

 

·         ABS-CBN v. COMELEC

·         In ABS-CBN v. Comelec, the Comelec banned “exit polls'' in the exercise of its authority to regulate the holders of media franchises during the election period.  It contends that “an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees....” However, the Court said that exit polls constitute an essential part of the freedoms of speech and of the press.  Hence, the Comelec CANNOT ban totally in the guise of promoting clean, honest, orderly and credible elections.  The ban does NOT satisfy the clear and present danger rule because the evils envisioned are MERELY SPECULATIVE.

·         Legal basis: Section 2, Article V of the Constitution

➔      Constitutional principle to preserve the sanctity of the ballots.

·         Art. III, Section 4.

·         Government regulation from US v. O’Brien

·         Cabansag v. Fernandez 2 theoretical tests

➔      Clear and present danger rule: the evil consequence of the comment or utterance must be extremely serious and the degree of imminence high before the utterance can be punished. The “danger” must not only be clear but also present. The danger must not only be probable but very likely inevitable.

➔      Dangerous tendency rule: the words uttered create a dangerous tendency which the state has the right to prevent, then such words are punishable.” It is not necessary that some definite or immediate acts of force, violence or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms.

 

·         Philippine Journalists, Inc. v. Francis Theonen

1. Legal basis: Article 19 of the Civil Code

➔      To "act with justice, give everyone his due, and observe honesty and good faith.”

2. “Libel is NOT protected speech.”
3. For an imputation to be libelous, the following requisites must be met:

➔       The allegation of a discreditable act or condition concerning another

➔      publication of the charge

➔      identity of the person defamed

➔      existence of malice.

4. An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the memory of one who is dead
5. To satisfy the element of identifiability

➔       It must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement.

➔      Malice or ill will must be present

6. Doctrine of privileged communication

➔     "A privileged communication may be either absolutely privileged or qualifiedly

Privileged.

Disini v. Secretary of Justice

1. Cybercrime Prevention Act of 2012 (RA 10175)

➔      Section 4(a)(1): calls for the application of the strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act(constitutional)

➔      Section 4(a)(3): simply punishes what essentially is a form of vandalism, the act of willfully destroying without right the things that belong to others, in this case their computer data, electronic document, or electronic data message.(constitutional)

➔      Section 4(b)(3): what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no fundamental right to acquire another’s personal  data. (constitutional)

➔      Section 4(c)(1): The law actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. (constitutional)

➔      Section 4(c)(2): merely expands the scope of the Anti-Child Pornography Act of 2009 (ACPA) to cover identical activities in cyberspace. (constitutional)

➔      Section 4(c)(3): restricted freedom of expression by prohibiting the unsolicited transmission of commercial communications, such as spam. The Supreme Court held that spams are a category of commercial speech(unconstitutional)

➔      Section 5(Aiding and Abetting) in relation to 4(c)(4): Section 5 renders criminally liable any person who willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.(unconstitutional)

➔      Section 12: violated the right to privacy because it lacked sufficient specificity and definiteness in collecting real-time computer data. Because Section 12 may lead to disclosure of private communications (unconstitutional)

➔      Section 19(Restricting or Blocking to Computer Data): provides that “When a computer data is prima facie found to be in violation of the provisions of this Act, the Department of Justice shall issue an order to restrict or block access to such computer data.” It gives the government the authority to restrict or block access to computer data without a judicial warrant. It, thus, violated the rights against unreasonable searches and seizures. (unconstitutional)

 

·         GMA v. COMELEC

1. Section 9 (a) of COMELEC Resolution No. 9615 (Resolution)

➔       limits the broadcast and radio advertisements of candidates and political parties for national election positions to an aggregate total of one hundred twenty (120) minutes and one hundred eighty (180) minutes, respectively. (unconstitutional)

2. Section 6 of R.A. No. 9006

➔      candidate is entitled to the number of minutes "per station” (May 14, 2007 and May 10, 2010)

3.      Legal basis: Art. III, Section 4

 

●     Chavez v. Gonzales

●        Legal basis: Anti-Wiretapping Act

 

 

 

Cases that tackles access to information, laws and procedures

 

Art. III, Section 4 1987 Constitution:

Right of access to information

Recognized Limitations:

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

 

●       In Garcia vs. Board of Investments, the Court emphasized that Article 81 provides for disclosure “on the orders of a court of competent jurisdiction”. The Court ruled that it had jurisdiction to order disclosure of the application, amended application, and supporting documents filed with the BOI under Article 81, with certain exceptions.

●       However, despite the right to access information, “the Constitution does NOT open every door to any and all information” because “the law may exempt certain types of information from public scrutiny.” Excluded from this right are “trade secrets and confidential, commercial, and financial information of the applicant Bataan Petrochemical Corporation, and matters affecting national security.”

●     Legal basis: Art. III. Section 7.

“The right of the people to information on matters of public concern shall be recognized.”

 

·         Baldoza v. Dimaano

·        In Baldoza v. Judge Dimaano, the respondent allowed the petitioner to open and view the docket books of respondent certain conditions and under his control and supervision. It has not been shown that the rules and conditions imposed by the respondent were unreasonable. The Constitution expressly recognizes that the people are entitled to information on matters of public concern and thus are expressly granted access to official records, as well as documents of official acts, or transactions, or decisions, subject to such limitations imposed by law. The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of information in a democracy. 

·         Legal basis: Art. III. Section 7.

“The right of the people to information on matters of public concern shall be recognized.”

 

·         Neri v. Senate

1. Legal basis: Section 21, Article VI of the Constitution

“The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly unpublished rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.”

Violated because: their inquiry was not in accordance with the "duly published rules of procedure," and they issued the contempt order arbitrarily and precipitately.

2. Executive privilege

➔      the power to enter into an executive agreement is a "quintessential (typical) and non-delegable presidential power

➔      the "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential

➔      The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information

3.    Art. III. Section 7.

“The right of the people to information on matters of public concern shall be recognized.”

 

Chavez v. PCGG

1. “Petition is granted on the grounds that the General and Supplemental Agreement dated December 28, 1993, which PCGG and the Marcos’ heirs entered into are NULL AND VOID for being contrary to law and the Constitution”
2. Legal basis: Section 7, Article III of the Constitution

➔      asserts that the right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

3. Section 5, Article VIII of the Constitution

➔      confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus.)

 

Cases about social order and freedom of expression

·         Navarro v. City Mayor Villegas

• In Navarro v. Villegas, Court sustained respondent mayor's act of refusing to issue a permit enabling students to hold a public rally. As stated in (legal basis) Primicias v. Fuguso, he possesses reasonable discretion to determine the public place to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order. 

• The right to freedom of assembly while not unlimited is entitled to be accorded the utmost deference and respect.
• “A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional”

 

·         Miller v. California

• California Penal Code
• The Court reaffirms the (legal basis) Roth v. United States holding that obscene material is not protected by the First Amendment.
• To prove obscenity, it must be affirmatively established that the material is "utterly without redeeming social value.”

 

• Miller Test

➔      whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest

➔      whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law

➔      whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

• One cannot say with certainty that material is obscene until at least five members of the Court, applying inevitably obscure standards, have pronounced it so.
• The work is considered obscene only if all three conditions are satisfied.
• The Courts should not apply a national standard but the standard of the community in which the material is being tested.
• In the case at bar, the Supreme Court (a) reaffirmed the Roth holding that obscene material is NOT protected by the First Amendment of the United States Constitution; (b) held that such material can be regulated by the States, subject to specific safeguards, without a showing that the material is “utterly without redeeming social value, and; (c) held that obscenity is to be determined “contemporary community standards.” Court noted that each state should be free, through state statute, to construct obscenity laws that are representative of their communities. Furthermore, the Supreme Court noted that the publication at issue in this case had NO literary, artistic, political or scientific value.

 

●      In Gonzales v. Katigbak, the petitioner questioned the classification of the movie “Kapit sa Patalim” as “For Adults Only” by the MTRCB and was suggested to have certain portions cut/deleted. The petition was dismissed because the Board did NOT commit grave abuse of discretion (and there was NOT enough votes for a ruling that there was really grave abuse).

●      Legal basis: “Freedom of speech is not absolute”

 

Cases about defamation and libel

·         Borjal v. Court of Appeals

1. Requisites for libel suit:

➔       It must be shown that at least a third person or a stranger was able to identify him as the object of the defamatory statement.

➔      Malice or ill will must be present

2. Legal basis: Doctrine of Fair Comment:

➔      while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable.

➔      In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition.

➔      the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.

3. Malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice.

➔      be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they are false or in reckless disregard of whether they are false or not

➔      "Reckless disregard of what is false or not" means that the defendant entertains serious doubt as to the truth of the publication, or that he possesses a high degree of awareness of their probable falsity.

 

• In US v. Bustos, Bustos and several people sent complaint letters via counsel against Justice of Peace Roman Punsalan, who charged them with libel. Bustos and the others were acquitted. The guarantees of free speech and a free press include the right to criticize judicial conduct. Also, Qualified Privilege is prima facie (Latin for “at first sight”) which may be lost by proof of malice. This is apparent in complaints made in good faith against a public official’s conduct having a duty in the matter. Even if the statements were found to be false, the protection of privilege may cover the individual given that it was in good faith. There must be a sense of duty and not a self-seeking motive.
• Legal basis: Qualified privilege

➔      prima facie (Latin for “at first sight”) which may be lost by proof of malice.

➔      apparent in complaints made in good faith against a public official’s conduct having a duty in the matter.

➔      Even if the statements were found to be false, the protection of privilege may cover the individual given that it was in good faith.

➔      there must be a sense of duty and not a self-seeking motive.

➔     rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer

 

 

 

 

 

Test of valid governmental interference (criteria in determining the liability of the individual for ideas he expressed)

●       Clear and present danger rule (provided in Cabansag v. Fernandez) - When words are used in such circumstance and of such nature as to create a clear and present danger that will bring about the substantive evil that the State has a right to prevent - (As formulated by Justice Holmes in Schenck v. United States); serious detriment to the more overriding interest of public health, public morals, or public welfare. Also, there must be reasonable apprehension about its imminence.  The time element cannot be ignored.  Nor does it suffice if such danger be only probable.

Clear - causal connection with the danger of the substantive evil arising from the utterance;

Present – time element; imminent and immediate danger (the danger must NOT ONLY be probable but ALSO inevitable).  (Gonzales v. Comelec)

 

 

 

 

 

More about Libel

●      The general rule for a speech to be considered libelous or defamatory is: Libel = falsity + actual malice (uttered in full knowledge of its falsity or with reckless disregard)

●       Exemption: When the subject of the supposed libelous or defamatory material is a public officer. Defamatory words may be uttered against them and not be considered libelous. The reason is that 1) they asked for it (“they voluntarily thrust themselves into the public eye and therefore should not be thin-skinned”); 2) it’s a matter of public interest; and 3) public figures have the opportunity and resources to rebut whatever is said against them. (Policarpio v. Manila Times);

●       Moreover, criticism of official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. Presence of clear and present danger of substantive evil must be proved. Actual Malice needs to be proved if a public official wants to recover damages for a defamatory falsehood relating to his official conduct.

 

 

 

Other Doctrines

1. Overbreadth doctrine.

A proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms. Put differently, an overbroad law or statute needlessly restricts even constitutionally-protected rights.

2. Clear and Present Danger Rule. This rule rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. As explained in Chavez v. Gonzales, a content-based regulation is evaluated using the clear and present danger rule, while courts will subject content-neutral restraints to intermediate scrutiny.
3. Content-based Restraint on Freedom of Speech. As explained in Chavez, a content-based regulation is evaluated using the clear and present danger rule. A content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. The cast of the restriction determines the test by which the challenged act is assayed with.
4. Content ­ neutral regulation - i.e., merely concerned with the incidents of speech, or one that merely controls the time, place, or manner, and under well[-]defined standards.  Courts will subject content-neutral restraints to intermediate scrutiny.
5. Executive Privilege. It  is  the  power  of  the  President  to  withhold certain  types  of  information  from  the  public,  the courts, and the Congress. Art. VI Section 22. The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
6. Doctrine of privileged communications.

It rests upon public policy, “which looks to the free and unfettered administration of justice, though, as an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer.” (Abbott v. National Bank of Commerce, Tacoma)

7. Doctrine of Fair Comment / Borjal Doctrine. Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. It means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, it is immaterial that the opinion happens to be mistaken, as long as it might reasonably inferred from the facts. (Borjal vs. CA, 301 SCRA 1)

Resource: https://phlegaldoctrines.blogspot.com/ ; http://ulandi-notes.blogspot.com/2014/06/definitions-and-doctrines-in-political.html

 

Sample question:

How do the Supreme Court decisions in New York Times v. United States, and United States v. O’Brien help define the meaning of “the freedom of speech and of the press”? Discuss. Do you agree or disagree with the outcome of these cases? Why?

 

How (in what way) do the Supreme Court decisions in New York Times v. United States, and United States v. O’Brien help define the meaning of “the freedom of speech and of the press”? Discuss. Do you agree or disagree (opinion) with the outcome of these cases? Why? (reason)

Answers:

How and Discuss

The New York Times decision established the doctrine that any system of prior restraints on expression imposed by the government carries it with a heavy presumption that is not invalid. Essentially it places a premium on freedom of speech and of the press over any form of censorship – like when a message will likely cause a grave and irreparable danger to the public when published. In this case the publication of a classified government document (Pentagon papers) was allowed because the government failed to overcome said heavy presumption.

How and Discuss

The O’Brien decision affirmed the criminal conviction of a person who symbolically burned his draft card under a federal law disallowing such alteration. This decision shows that freedom of expression is not absolute. Here, it was justified that it is within power of the government protect the sanctity of an instrument where the prohibition is unrelated to freedom of speech but related to the protection of an important government interest. If there is any suppression of expression, it was merely incidental.

Opinion and Reason

I don’t exactly agree with the outcome of the O’Brien decision because it upheld a system of subsequent punishment for a clearly symbolic speech – and essential tool of freedom of expression – in favor of a draft card the destruction of which does not really pose a clear and present danger of substantive evil to society, following the standards set by the New York Times decision which I full conform to. An enlightened citizenry is worth the risk of sacrificing certain government interests in the altar of democracy.

Shorter answer:

The New York Times decision places a premium on freedom of speech and of the press  over any form of censorship  by requiring a heavy presumption that said prior restraint is not invalid . Thus, the publication of a secret government document was allowed because the government failed to overcome said heavy presumption. The O’Brien decision, on the other hand, set the limit on freedom of expression by  upholding the validity of a law which prohibits the alteration of the draft card in favor of protecting an important government interest, and where suppression of expression was merely incidental.

I disagree with the outcome of the O’Brien decision because it is a subsequent punishment against the destruction of a draft card - a form of symbolic speech which does not pose a clear and present danger of substantive evil to society,  following the standards set by the New York Times decision which I fully conform to. An enlightened citizenry is worth the risk of sacrificing certain government interests in the altar of democracy.