ANONUEVO, JAIME JR. G.

LAW-1A
UST-Legazpi College of Law

FREEDOM OF EXPRESSION

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

Section 7, Article III – “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 citizens subject to such limitations as may be
provided by law.”

Section 8, Article III – “The right of the people, including those employed in the public and
private sectors, to form unions, associations or societies for purposes not contrary to law
shall not be abridged.”

Section 18(1), Article III – “No person shall be detained solely by reason of his political beliefs
and aspirations.”

1. What are the five different rights included in Section 4, Article III of the 1987 Constitution?

ANSWER:

The five different rights included in Section 4, Article III of the 1987 Constitution are:
a. The freedom of expression;
b. The freedom of speech;
c. The freedom of the press;
d. The right to peaceably assemble; and
e. The right to petition the government for redress of grievances.

2. Can a private individual criticize the President or any public official for his performance in
leading our country through this pandemic? If so, are there any limitations? How about the
private lives of our government officials, are they also open to criticisms? Explain your
answer.

ANSWER:

Yes. The official acts, and now even the private life, of a public servant are legitimate
subjects of public comment. The people have a right to scrutinize and commend or condemn
the conduct of their chosen representatives of the government. And as long as their comments
are made in good faith and with justifiable ends, they are insulated from prosecution or
damage suits for defamation even if such views are found to be inaccurate or erroneous.

2.1. Last month’s hot topic was the NBI Investigation opened against Atty. Chel
Diokno for criticizing the President. In his criticism, he allegedly questioned the
wisdom of the President’s decision to acquire an airplane worth Php2 Billion instead
of using the money to augment the rapidly depleting government fund to fight the
pandemic. The NBI in its subpoena stated that Atty. Diokno violated Article 154 of the
Revised Penal Code in relation to the Cyber Crime law. Can Atty. Diokno validly
interpose as his defense his Freedom of Expression?
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

ANSWER:

Yes, because freedom of expression is available insofar as it is exercised for the

discussion of matters affecting the public interest.

When, as alleged, Atty. Chel Diokno questioned the wisdom of the President’s
decision to acquire an airplane worth Php2 Billion instead of using the money to
augment the rapidly depleting government fund to fight pandemic, he was in the proper
exercise of his freedom of expression, the questioned wisdom of such facts being a
matter of public interest.

Having the foregoing reason, Atty. Diokno can validly interpose as his defense
Freedom of expression.

2.2. The Bayanihan to Heal as One Act became effective on March 26, 2020. Section
6 (f) of the said law criminally penalizes the spreading of false news with respect to
the pandemic. Is this not a curtailment of the Freedom of Expression, especially since
the Constitutional Provision explicitly states that “NO LAW SHALL BE PASSED…”.
Explain your answer.

ANSWER:

Section 4, Article III, of the 1987 Constitution is not absolute. As stated in one
jurisprudence, every individual freedom is subject to the police power of the State when
in the exercise of such freedom, the general public interest is involved.

Spreading false news, specifically those creating panic upon the public, and
specially in the days of global pandemic when every life is threatened by the strange
virus, would cause a public disorder punishable under the Penal Code. The penalty
under the Bayanihan to Heal as One Act is a mere reiteration of such an act already
defined and punished under the Revised Penal Code.

2.3. Can a private individual criticize and malign to the point of slander another
private individual freely and hide under the mantle of the Constitutional right to free
expression? Fully explain your answer.

ANSWER:

No. Slanderous criticism detrimental to the right of another is not insulated by

the freedom of expression. As the principle honors that in the exercise of one’s right,
one must be mindful of the right of others.

3. Briefly explain the importance of the freedom of expression.

ANSWER:

Section 1, Article II of the 1987 Constitution provides that “sovereignty resides in the
people”. In the words of Justice Cruz, this ascertainment manifests regularly through suffrages
and generally by the assertion of freedom of expression. This freedom, gives every citizen, as an
“individual particle of sovereignty”, the opportunity to participate in shaping of public affairs,
and the right to offer views and suggestions in the discussion of the common problems of the
community or the nation. The scope alone of the options, let alone the latitude with which they
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

are considered, can insure a far better choice than that made by the heedless dictator in the
narrow confines of his mind and the loneliness of his pinnacle. The mass of various ideas
proposed and their collective wisdom offer the best remedies to the difficulties people face.
Hence, freedom of expression does not only vest right but also imposed duty among the
citizens.

3.1. Briefly, explain each theory/school of thought that strengthen the need to
protect the basic right to freedom of expression, as enunciated by the Court in Diocese of
Bacolod v. COMELEC (G.R. No. 205728, January 21, 2015). (Do not just enumerate the schools
of thought/theories.

ANSWER:

As enumerated in Diocese of Bacolod v. Commission on Elections, the following are

several theories and schools of thought that strengthen the need to protect the basic right to
freedom of expression, to wit:

a. Deliberative democracy. It includes the right of the people to participate in public

affairs, including the right to criticize the government actions.
b. Free speech being under the concept of market place of ideas.
c. Free speech involves self-expression that enhances human dignity. This right is a means
of assuring individual self-fulfillment, among others.
d. Free expression as a marker of group identity.
e. The Bill of Rights, where free speech is included, is supposed to protect individuals and
minorities against majoritatian abusesperpetrated through the framework of
democratic governance.
f. Free speech must be protected under the Saftey Value Theory. This provides that non-
violent manifestations of dissent reduce the likelihood of violence.

4. Yesterday’s hot topic was the teacher (Mr. Mas) who posted that he would pay Php50M to
anyone who will kill Duterte. His post, to wit, is as follows: “I will give ₱50 Million reward
kung sino makakapatay kay Duterte”. The NBI claims that his statement on twitter is
seditious. Had he not apologized; can he validly invoke his freedom of expression?

ANSWER:

No. It is true, as guaranteed by the Constitution, that every citizen is given the right to
utter what is in his mind—an opportunity to be heard and to be listened to—and to openly
express what he feels. However, such right is not unlimited to the extent of creating a clear and
present danger to the State.

The President is the head of the State. To reward the death of the President is to
celebrate the fall of the State and create disorder among its citizenry. The insidious words of
Mr. Mas are not ones insulated by the vast freedom of expression as it presents a clear and
present danger to the State.

4.1. As the teacher’s lawyer, how will you lodge his defense?

4.2. What is the scope of the Freedom of Expression? Briefly explain and give
examples.

ANSWER:
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

Freedom of expression is available only insofar as it is exercised for the

discussion of matters affecting the public interest. Purely private interest matters do not
come within the guaranty (invasion of privacy is not sanctioned by the Constitution).

It covers ideas that are acceptable to the majority and the unorthodox view.
(One of the functions of this freedom is “to invite dispute” – US Supreme Court; “I may
not agree with what you say, but I will defend to the death your right to say it.” -
Voltaire)

The freedom to speak includes the right to silent. (This freedom was meant not
only to protect the minority who want to talk but also to benefit the majority who
refuse to listen. - Socrates)

4.3. What are the different modes of expression which are included in the freedom
of expression?

ANSWER:

Modes of expression which are included in the freedom of expression may be:

(a) Oral and written language; or

(b) Symbolisms (e.g. bended knee, salute to the flag, cartoons).

4.4. BONUS: Mr. Mas posted his statement on twitter on May 5, 2020, but was only
arrested by NBI agents on May 11, 2020. Was the warrantless arrest of the teacher a
valid?

ANSWER:

When one publicly posts something on social media, he is presumed to have

known that the world eyes on it, and must therefore be aware of the consequences of
the same, including the reach of such post to the authority.

Although the posted statement of Mr. Mas was made on May 5, 2020, it
continues to be in existence to the pervasive social media platform until he was arrested
by the NBI agents on May 11, 2020. The apprehension of Mr. Mas falls under valid
warrantless arrest as he, from the time of his arrest, was currently committing a crime of
sedition punishable under the Revised Penal Code.

4.4.1. Is the justification by the State Prosecutor (that the defect during the
warrantless arrest was cured by the extrajudicial admission Mr. Mas to the
media) correct?

ANSWER:

Absolutely, yes.

5. The two elements/aspect of the Freedom of Expression are: a) freedom from previous
restraint or censorship; and b) freedom from subsequent punishment. Fully explain each.

ANSWER:
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

a. Freedom from previous restraint is largely freedom from government censorship of

publications, whatever the form of censorship, and regardless of whether it is wielded
by the executive, legislative or judicial branch of the government. Thus, it precludes
governmental acts that required approval of a proposal to publish; licensing or permits
as prerequisites to publication including the payment of license taxes for the privilege to
publish; and even injunctions against publication. Even the closure of the business and
printing offices of certain newspapers, resulting in the discontinuation of their printing
and publication, are deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be made, commits
an infringement of the constitutional right, and remedy can be had at the courts.

b. One author has said that the “freedom of expression implies the right to freely utter or
publish one’s beliefs, ideas, or opinions without prior restraint, and to be protected
against any subsequent responsibility for so doing as long as it does not violate the law
or injure someone’s character, reputation or business”.

The freedom of expression also includes the protection against subsequent punishment
or the power of the state to impose punishment after the utterance of an expression.

6. Fully discuss the following: a) content-based restraint; and b) content-neutral restraint.

ANSWER:

a. In “content-based” restraint, the restriction is based on the subject matter of the

utterance of speech. It aimed at the contents or idea of the expression. It may be based
on the viewpoint of the speaker or the subject of the expression. It bears a heavy
presumption of invalidity and is measured against the clear and present danger rule.
b. The “content-neutral” restraint merely concerned with the incidents of speech, or one
the merely controls the time, place or manner, and under well-defined standards
tailored to serve a compelling state interest, without restrict on the message of
expression.

6.1. What are the similarities and differences between the two? You may utilize a
table in the crafting of your answer.

ANSWER:

a. Both are regulations on the freedom of speech.

b. in “content-based” the restriction is directed on the speech; while in “content-
neutral” the restriction is merely on the time, place, and manner in which the
speech is to be delivered.

6.2. Explain/define the following:

ANSWER:

a. “facial challenge”

A “facial challenge” is a challenge to a statute in court, in which the plaintiff

alleges that the legislation is always, and under all circumstances,
unconstitutional, and therefore void.
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

A “facial challenge” is allowed to be made to a vague statute and to one

which is overbroad because of possible 'chilling effect' upon protected
speech.

b. “overbreadth doctrine”

The “overbreadth doctrine” is an exception to the prohibition against third-

party standing. It permits a person to challenge a statute on the ground that
it violates the First Amendment (free speech) rights of third parties not
before the court, even though the law is constitutional as applied to that
defendant.

c. “void-for-vagueness doctrine”

A statue maybe said to be void-for-vagueness when it lacks comprehensible

standards that “men of common intelligence must necessarily guess at its
meaning and differ as to its application”. It is repugnant to the constitution in
two aspects: (a) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid and
(b) it leaves law enforcers unbridled discretion in carrying out its provisions
and become an arbitrary flexing of the government muscle.

7. In the case of Soriano v. Laguardia, the Court sustained the suspension order of the MTRCB
on the show of Mr. Soriano, and stated that it was a “permissible restriction” on the freedom
of expression. The Court further stated that Mr. Soriano’s “utterances during his prime-time
television program constituted unprotected speech or low-value expression etc…”.

Our president is known for his long drawn out speech with multiple expletives and R18
anecdotes of his life. Hypothetically, can the Soriano doctrine be used against the President?

ANSWER:

The President has been granted by the Constitution with the immunity from suit while
during his term. Such immunity is applicable so long as his committed violation of law is not
punishable by more that 6 years imprisonment. The speech of the President having multiple
expletives and R18 anecdotes, being punishable by less than 6 years imprisonment, is
exempted from suit since his term has no ended yet.

8. Explain each test and give an example:

ANSWER:

a) The Clear and Present Danger Rule

The test for limitations on freedom of expression continues to be the clear and
present danger rule, that words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that the lawmaker has a right to prevent.

For instance, the most stringent protection of free protection of free speech would
not protect a man in falsely shouting “Fire, fire” in a crowded theater and causing a
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

panic. By contrast, the same word shouted with the same note of alarm but in a less
flammable setting, say an open field, would create no clear and present danger and
therefore no liability.

b) The Dangerous Tendency Doctrine

Under this doctrine, “if the words uttered create a dangerous tendency which the
State has a right to prevent, then such words are punishable. It is not necessary that
some definite or immediate act of force, violence, or unlawfulness be advocated. It
is sufficient that such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of force, violence,
or unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body seeks to
prevent.” (Cabansag v. Fernandez)

In people v. Perez, a lowly municicpal secretary, in the course of a conversation at a

casual meeting with another person, remarked, “ The Filipinos like myself must use
bolos for cutting off (Governor-General) Wood’s head for having recommended bad
things for the Filipinos, for he has killed our independence.” He was sentenced to
jail.

c) The Balancing of Interest Test

Under this test, when particular conduct is regulated in the interest of public order,
the regulation results in an indirect, conditional, partial abridgment of speech, the
duty of the courts is to determine which of the two conflicting interests demands
the greater protection under the particular circumstances presented. (American
Communications Association v. Douds)

Thus, if in a given situation it should appear that there is urgent necessity for
protecting the national security against exercise of freedom of expression, the right
must yield. But if no special justification exists for curtailment of the freedom, the
interest of the State not being specially threatened by its exercise, it is the right that
must prevail.

9. What is the extent of the criticism of official conduct? Can this criticism extend to the
private lives of the said officials?

ANSWER:

The official acts, and now even the private life, of a public servant are legitimate
subjects of public comment. The people have a right to scrutinize and commend or condemn
the conduct of their chosen representatives of the government. And as long as their comments
are made in good faith and with justifiable ends, they are insulated from prosecution or
damage suits for defamation even if such views are found to be inaccurate or erroneous.

9.1. Another hot topic during the pandemic revolved around Senator Koko
Pimentel. Allegedly, while fully knowing that he was already Covid-19 positive, Senator Koko
Pimentel brought his wife to a certain hospital in Makati and demanded that his wife be
admitted as she was about to give birth. There are allegations that Sen. Pimentel walked
around the hospital, effectively contaminating the areas where he was present. This was
heavily criticized by the netizens.
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

Now, it appears that Sen. Pimentel has recovered from the virus. Can he file a case for cyber-
libel against his critics?

ANSWER:

No, he cannot. The official acts, and now even the private life, of a public servant are
legitimate subjects of public comment. The people have a right to scrutinize and commend or
condemn the conduct of their chosen representatives of the government. And as long as their
comments are made in good faith and with justifiable ends, they are insulated from prosecution
or damage suits for defamation even if such views are found to be inaccurate or erroneous.

9.2. A documentary of the pandemic is being filmed and the story of Sen. Koko
Pimentel is featured in it. In the 20-part documentary, a whole 1-hour episode is
dedicated to Sen. Pimentel, however, the director and producer does not how to fill
out the entire one hour with the Covid 19 hospital ordeal of the good senator. They
decided to include in the documentary the story of his first marriage, and the rumored
cause of its dissolution, as well as the circumstances of surrounding his second
marriage.

May the Senator object to his inclusion in the Covid 19 Documentary? Absolute yes/no
or qualified yes/no? Explain.

Absolutely yes. In one case, it was declared by the Supreme Court that “being a
public figure does not automatically destroy in toto a person’s right to privacy. The right
to invade a person’s privacy to disseminate public information does not extend to a
fictional or novelized representation of a person, no matter how public a figure he or
she may be.”

In the present case, the first marriage of the senator has nothing to do with the
pandemic, thus, may not be touched in the production of the documentary.

9.3. If you topped the Bar Exam, does this accomplishment remove you from the
private sphere, and into sphere of public issue open to the criticism and scrutiny of the
general public?

ANSWER:

Yes. A private individual, like the Bar Top Notcher, may become a subject of
public comment even if he is not a public official or at least a public figure, as long as he
is involved in a public issue.

9.4. Fully explain the rule of sub judice and reason behind it. Cite concrete
examples.

ANSWER:

The rule means that when a legal matter or controversy has come under the
jurisdiction of a court (sub judice), nobody, including the press and other media should
interfere by publication or public clamor with the court's proper handling of the
proceeding. The reason behind is that such interference would detriment the proper
administration of justice.
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

In People v. Alarcon, the Supreme Court held that “Newspaper publications

tending to impede, obstruct, embarrass or influence the courts in administering justice
in a pending suit or proceeding constitutes criminal contempt which is summarily
punishable by the courts.”

9.4.1. What is the penalty for violating the rule on sub judice? Is this penalty
also applicable to persons who heavily criticizes the courts?

ANSWER:

The penalty for violating the rule on sub judice is contempt. If an

actuation is done in the proper spirit, such penalty may not be applicable to
persons who heavily criticizes the courts. (In Re Sotto)

10. Our authors has placed a special emphasis on movies, however, the reality now-a-days,
especially with the pandemic, is that we consume media (videos, pictures, music) over the
internet. Netflix, Hulu, Amazon Prime are the prime examples. The regulation of these
“channels” are easy since the content are already pre-rated, but the same may not be said for
other forms and sources of media such as youtube, Instagram, twitter, google etc. which at a
click of a finger gives unrestricted access to the obscenity.

10.1. Fully explain the test for obscenity as stated in Miller v. California.

ANSWER:

The Miller test for obscenity includes the following criteria:

1. whether ‘the average person, applying contemporary community standards would

find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’;
2. whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law, and
3. whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or
scientific value.

10.2. Are you for or against the regulation of youtube, twitter, Instagram, facebook,
tik tok and other forms of user content provided platforms? Revolve your answer
around the Freedom of Expression.

ANSWER:

My answer, like others, is dependent upon the content of the materials

published in such media platforms. If the material’s content is detrimental to the law,
morals, good customs, public order, or public interest, then I will go against the media
platforms. Otherwise, I will be in favor of them because they have the guarantee of
freedom of expression under the Constitution.

11. Discuss the right to assembly and petition. Include in your discussion the requirements
AND tests of a lawful assembly.
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

11.1. For the past 2 months, the Philippines has been placed under an enhanced
community quarantine. Present arguments on why the enhanced community
quarantine is a curtailment of the right to assembly.

11.2. Rebut your arguments in 11.1.

12. Fully discuss the right of association. Is this right unlimited? If not, what are the
limitations?

ANSWER:

The right of assembly is important to freedom of expression because public issues are
better resolved after an exchange of views among citizens meeting with each other for the
purpose. The public meeting is an effective forum for the ventilation of ideas affecting the
common welfare.

Like other rights embraced in freedom of expression, the right to assemble is not subject
to previous restraint or censorship. Hence, it may not be conditioned upon the prior issuance of
a permit or authorization from government authorities. It should be noted, however, that if the
assembly is in intended to be held in a public place, a permit to use of such place, and not for
the assemble itself, may be validly required.

Ideally, the test of a lawful assembly should be the purpose for which it is held,
regardless of the auspices under which it is organized.

12.1. Can government officials and employees form an association? May they validly
call a strike to enforce their economic demands? If not, what are the available
remedies for government officials and employees to enforce their economic
demands? Explain your answer.

12.2. The right of association also includes the right not to join an association.
Assuming you all become lawyers, as a first-year lawyer, you may still not be
economically stable. But as a condition to your practice of law, you must be a member
in good standing of the Integrated Bar of the Philippines. You then proceed to the IBP
office to pay your IBP dues, and then you get the shock of you life. The IBP charges you
exorbitant amounts as your IBP annual dues. May you validly invoke your right not to
join an association in order to resist joining the Integrated Bar of the Philippines?
Discuss.

ANSWER:

No. To compel a lawyer to be a member of the Integrated Bar of the Philippines

is not violative of constitutional freedom to associate. Moreover, the fee is imposed as a
regulatory measure, designed to raise funds for carrying out the objectives and
purposes of integration. If the power imposed as a regulatory measure is recognized,
then a penalty designed to enforce its payment, which penalty may be avoided
althogether by payment, is not void as unreasonable or arbitrary.

12.3. What is a closed-shop? Why is this not considered a restriction of the right of
association?

ANSWER:
ANONUEVO, JAIME JR. G.
LAW-1A
UST-Legazpi College of Law

“Closed-shop” is an agreement whereby an employer binds himself to hire only

members of the contracting union who must continue to remain members in good
standing to keep their jobs.

It seems like closed-shop is not considered a restriction of the right of

association because, as held in one case, that the right to associate included the right
not to associate. This was particularly intended for the benefits of laborers who were
inhibited from joining labor unions because of their religious beliefs.

13. Briefly discuss the right of access to public information.

ANSWER:

The right to access to public information guarantees the right of the people to demand
information, complementing to the duty of officialdom, under the Constitution, to give
information even if nobody demands. Such provisions seek to promote transparency in policy-
making and in the operations of the government, as well as provide the people sufficient
information to exercise effectively other constitutional rights

13.1. What is included in the term public information? Are SALNs of the public
official included?

ANSWER:

The right to access information guarantees everyone the right of access to all
information and documents related to the management of public affairs regardless of
the status of the concerned person and the purpose for obtaining the required
information.

SALNs of the public officials are included because, as held by the long line of
cases, the public office is a public trust. The life of a public official is an open book
available to public because they are entrusted with the governance by the people.
Therefore, all his wealth must be declared so that the people may evaluate the same.
This is to safeguard the State’s fund from corruption of public officials.

13.2. The Data Privacy Act of 2012 seeks to protect personal and sensitive personal
information of individuals, which also covers information collected by the government.
How will this new law affect the roster of cases supporting the right of the public to
access to information?