PBM Employees Organization vs. PBM Co. Inc. 51 SCRA 189 (1973) on freedom of expression and assembly and preferred position of these freedoms.

FACTS: the petitioner planned a demonstration at Malacañang to protest certain alleged abuses committed by the Pasig police. To prevent disruption of work, the respondent requested the exclusion of workers in the 1st shift, when the demonstration was held, but this request was rejected as all the employees wanted to participate. The rally was held as planned, & thereafter the respondent sought the dismissal of the leaders of the labor union for violation of CBA.

ISSUE: WON the Government can curtail the Freedom of Expression of the people and when exercise of rights conflict with one another, what right has preference over the other for the State to uphold.

RULING/ what right(s) did Freedom of Expression and Assembly prevailed?The court ruled that the right to free assembly and petition prevails over economic rights. The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.

Human rights supreme to property rights because these freedoms are "delicate and vulnerable, as well as supremely precious in our society" and the "threat of sanctions may deter their exercise almost as potently as the actual application of sanctions," they "need breathing space to survive," permitting government regulation only "with narrow specificity." Property and property rights can be lost thru prescription; but human rights are imprescriptible.

Freedom of assembly and expression occupy a preferred position. The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable or rational relation between the means employed by the law and its object or purpose—that the law is neither arbitrary nor discriminatory nor oppressive—would suffice to validate a law which restricts or impairs property rights. On the other hand, a constitutional or valid infringement of human rights requires a more stringent criterion, namely, existence of a grave and immediate danger of a substantive evil which the State has the right to prevent

Chavez vs. Secretary Gonzalez, 545 SCRA 441, [G.R. No. 168338] (Feb. 15, 2008)What government action was assailed by Chavez as violative of the freedom of expression? The warnings given to media that came from NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media & from the Secretary of Justice who wields the awesome power to prosecute those perceived to be violating the laws of the land.What was the content of the act sought to be prevented?

What are content-based and content-neutral regulations? a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standardsa 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.

Was the law constitutive of prior restraint? It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint.The concept of an “act” does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.

What test was used in determining whether the act of the government did not violate freedom of expression? (a) The dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated

(b) The balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; and

(c) The clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, “extremely serious and the degree of imminence extremely high.”

FACTS: As a consequence of the public release of copies of the “Hello Garci” compact disc audiotapes involving a wiretapped mobile phone conversation between then-PGMA and Comelec Comm. Garcillano, respondent DOJ Secretary Gonzales warned reporters that those who had copies of the CD and those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody. Finally, he stated that he had ordered the NBI to go after media organizations “found to have caused the spread, the playing and the printing of the contents of a tape.” 

Meanwhile, respondent NTC warned in a press release all radio stations and TV network owners/operators that the conditions of the authorization and permits issued to them by government like the Provisional Authority and/or Certificate of Authority explicitly provides that they shall not use their stations for the broadcasting or telecasting of false information or willful misrepresentation. The NTC stated that the continuous airing or broadcast of the “Hello Garci” taped conversations by radio and TV stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority.  It warned that their broadcast/airing of such false information and/or willful misrepresentation shall be a just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said media establishments.

ISSUE: WON the Secretary of Justice and NTC can warn media from playing a “content-based restriction.”

RULING: the SC held that acts of the Secretary of Justice & NTC in warning television stations against playing the “Garci tapes” under pain of revocation of their licenses, were content-based restrictions and should be subjected to clear and present danger test. They focused only on one subject ---a specific content ---the alleged taped conversation between the President and a Comelec official; they did not merely provide regulations as to time, place or manner of dissemination of speech or expression.Respondents’ evidence falls short of satisfying the clear and present danger test.

Sanidad vs. Comelec, 181 SCRA 529, [G.R. No. 90878] (Jan. 29, 1990)What did the Comelec prohibit? It prohibits radio commentator/ newspaper columnist from commenting on the issues involved in the scheduled plebiscite on the organic law creating the CAR

Did the law pass the test of overbreadth and vagueness? Was it an appropriate test for restrictions on free speech?

FACTS: On 23 October 1989, RA 6766 (Act providing for an organic act for the Cordillera Autonomous Region) was enacted into law. The plebiscite was scheduled. The Comelec, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), 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. Pablito V. Sanidad, a newspaper columnist of “Overview” for the “Baguio Midland Courier” assailed the constitutionality of Section 19 (Prohibition on columnists, commentators or announcers) of the said resolution, which provides “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.

ISSUE: WON the Comelec Resolution prohibiting columnists and announcers from using their columns ad radio time to campaign for or against the issues in the plebiscite for the Organic Act for Cordilleras except through the Comelec time and space.

RULING/ Was it an unconstitutional restraint on freedom of expression? Why? Yes. The Court annulled the Comelec prohibition against radio commentator/ newspaper columnist from commenting on the issues involved in the scheduled plebiscite on the organic law creating the CAR as an unconstitutional restraint from freedom of expression.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.

Neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 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 No. 2167 has no statutory basis.

Osmena vs. Comelec, 288 SCRA 447 [G.R. No. 132231] (March 31, 1998)What law was questioned in this case? R.A. No. 6646, the Electoral Reforms Law of 1987, prohibits mass media from selling or giving free of charge print space or air time for campaign or other political purposes, except to the Commission on Elections

What specific provision in the law? Sec. 11 §11(b) which states:Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

. . . .(b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the  Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881.  Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period.On the other hand, the Omnibus Election Code provisions referred to in §11(b) read:SEC. 90.  Comelec space. -— The Commission shall procure space in at least one newspaper of general circulation in every province or city:  Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as “Comelec Space” wherein candidates can announce their candidacy.  Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated.  (Sec. 45,  1978 EC).SEC. 92.  Comelec time. - The Commission shall procure radio and television time to be known as “Comelec Time” which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations.  For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign.  (Sec. 46, 1978 EC)

What were the arguments of the petitioners in assailing the provision of the law? -Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception that Art. IX-C, §4 mandates the absolute equality of all candidates regardless of financial status, when what this provision speaks of is “equality of opportunity.” - Petitioners contend that §11(b) is not a reasonable means for achieving the purpose for which it was enacted.  They claim that instead of levelling the playing field as far as the use of mass media for political campaign is concerned, §11(b) has abolished it.  They further claim that §11(b) does not prevent rich candidates from using their superior resources to the disadvantage of poor candidates. -It is finally argued that COMELEC Space and COMELEC Time are ineffectual.  It is claimed that people hardly read or watch or listen to them.

Did the law comply with the overbreadth and vagueness tests? Was the provision assailed content-neutral or content-based? The case cited United States vs. O’ Brien. What was discussed in the O’ Brien case? It is an appropriate test for restrictions on speech which, like §11(b), are content-neutral. Unlike content-based restrictions, they are not imposed because of the content of the speech. For this reason, content-neutral restrictions are tests demanding standards.

Was the Clear and Present danger test appropriate in resolving the issue in this case? It is inappropriate as a test for determining the constitutional validity of laws which, like §11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-and-presentdanger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed.Justice Panganiban’s dissent invokes the clear-and-present-danger test and argues that “media ads do not partake of the ‘real substantive evil’ that the state has a right to prevent and that justifies the curtailment of the people’s cardinal right to choose their means of expression and of access to information.” The clear-and-present-danger test is not, however, a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated for free speech cases. For the criminal law is necessarily concerned with the line at which innocent preparation ends and a guilty conspiracy or attempt begins.

FACTS: -Emilio Osmena and other petitioners are candidates in the National Elections. R.A. No. 6646, the Electoral Reforms Law of 1987, prohibits mass media from selling or giving free of charge print space or air time for campaign or other political purposes, except to the Commission on Elections. They contend that events after the ruling in National Press Club v. Commission on Elections “have called into question the validity of the very premises of that decision.

NPC v. COMELEC upheld the validity of R.A. No. 6646 against claims that it abridged freedom of speech and of the press. In urging a reexamination of that ruling, petitioners claim that experience in the last five years since the decision in that case has shown the “undesirable effects” of the law because “the ban on political advertising has not only failed to level the playing field, but actually worked to the grave disadvantage of the poor candidate[s]” by depriving them of a medium which they can afford to pay for while their more affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and handbills. However, no empirical data were presented by the petitioners to back up their claim. They instead they make arguments from which it is clear that their disagreement is with the opinion of the Court on the constitutionality of R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in that case.

ISSUE: WON Section 11(b) of R.A. 6646, which prohibited any person making use of the media to sell or to give free of charge print space or air time for campaign or other purposes, except to the Comelec, was valid. 

RULING: the SC reaffirmed the validity of Section 11(b) of R.A. 6646, as a legitimate exercise of police power of the State to regulate media of communication and information for the purpose of ensuring equal opportunity, time and space for political campaigns. The regulation is

unrelated to the suppression of speech, as any restriction on freedom of expression occasioned thereby is only incidental and no more than necessary to achieve the purpose of promoting equality.

Lagunzad vs. Sotto Vda. De Gonzales, 92 SCRA 476 [No. L-32066] (April 6, 1979)What exhibition was sought to be prevented? Why? public exhibition of the movie “Moises Padilla Story” because of the “exploitation of his life”Did the court grant the petition? Why? Court denied the petition, it ruled that The limits of the freedom of speech and press are reached when it touches on matters of private concernDid it constitute prior restraint? What is another term for prior restraint? Petitioner express his thoughts in film on the public life of Moises Padilla without prior restraint.What is another term for prior restraint? Censorship

FACTS: Lagunzad is the producer of a film "Moises Padilla Story," which exhibits the true life story of the late Moises Padilla, a local official who had been murdered and become a sort of folk hero. However, Padilla's mother demands payment of royalty and other fees as the movie would exploit the privacy of their family. The supposed payment is what was contemplated in their agreement. In Lagunzad's defense, private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure.

RULING: the Court granted the petition to restrain the public exhibition of the movie because it contained fictionalized embellishment.

Petitioner’s averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure is neither well taken. Being a public figure ipso facto 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 case at bar, while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality.

SWS vs. Comelec, 357 SCRA 496, [G.R. NO. 147571 (May 5, 2011)What provision in the law was questioned to be violative of the freedom of expression? Why? Commission on Elections from enforcing §5.4 of R.A. No. 9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days before an election.Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint.

What was sought to be done by the questioned provision in the law? Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply;

What were the arguments of the petitioners? They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys which are relatively objective.

FACTS: Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing R.A. No. 9006 (Fair Election Act). Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001.Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint.

RULING: Sec.5.4 of RA 9006 was held to be unconstitutional abridgement of freedom of expression 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. It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.”

National Press Club vs. Comelec, 207 SCRA 1 [G.R. No. 102925] (March 5, 1992)What law or regulation was assailed by the NPC as against the

freedom of expression? The validity of Sec. 11 of RA 6646 prohibiting “for any newspapers, radio broadcasting or television station, other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period”

How was the doctrine in the O’ Brien case applied?

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

RULING: the SC upheld the validity of Sec. 11b of RA 6646, which prohibited any person making use of the media to sell or give free of charge print space or air time for campaign or other political purposes except to the Comelec. This was held to be within the constitutional power of the Comelec to supervise the enjoyment or utilization franchises for the operation of media of communication and information, for the purpose of ensuring equal opportunity, time and space and the right to reply as well as the uniform and reasonable rates of charges for the use of the facilities.

Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX (C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the

resources of the financially affluent candidates are likely to make a crucial difference.

Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529 [G.R. No. 119673] (July 26, 1996)Concentrate only on freedom of expression. Do not touch on freedom of religion. What agency of government was questioned in this case? Why? The Movies & Television Review and Classification Board because because it was allegedly gravely abuse its discretion in prohibiting their exhibition as x-rated material

Did the act constitute a prior restraint? What test was applied? 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.

FACTS: This is a petition for review on the decision of the CA affirming action of respondent Board of Review For Moving Pictures and Television that x-rated the TV Program "Ang Iglesia ni Cristo" classifying it not for public viewing on grounds that they offend and constitute an attack against other religions which is expressly prohibited by law. Respondent contends the Board acted without jurisdiction and in grave abuse of discretion by requiring them to submit VTR tapes and x-rating them and suppression of freedom of expression. Trial court rendered judgment ordering the Board to give petitioner the permit for their TV program while ordering petitioners to refrain from attacking and offending other religious sectors from their program. In their motion for reconsideration the petitioner prays for the deletion of the order of the court to make them subject to the requirement of submitting the VTR tapes of their programs for review prior to showing on television. Such motion was granted. Respondent board appealed before the CA which reversed the decision of the lower court affirming the jurisdiction and power of the board to review the TV program. In their petition for review on certiorari, petitioner assails the jurisdiction of the Board over reviewing of their TV program and its grave abuse of discretion of its power to review if they are indeed vested with such.

RULING: it suppresses petitioner’s freedom of speech and interferes with its right to free exercise of religion .The evidence shows that the respondent Board x-rated petitioners TV series for “attacking” other religions, especially the Catholic church. An examination of the evidence, especially Exhibits “A,” “A-1,” “B,” “C,” and “D” will show that the so-called “attacks” are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing under Section 3(c) of PD 1986.

The respondents cannot also rely on the ground “attacks against another religion” in x-rating the religious program of petitioner. Even a sideglance at

Section 3 of PD No. 1986 will reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioner’s television program.

The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. 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.

Zaldivar vs. Sandiganbayan. 166 SCRA 316 (1988)What right or rights did the respondent invoke in this case? How did the court discuss the different tests for a valid government interference? The case mentioned “visible tendency rule.” What was this? The Court did not purport to announce a new doctrine of "visible tendency," it was simply paraphrasing Section 3 (d) of Rule 71 of the Revised Rules of Court which penalizes a variety of contumacious conduct including: "any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice."Under either the "clear and present danger" test or the "balancing-of-interest test," the Court held that the statements made by respondent 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. 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, which has some implications to the society.

FACTS: a member of the Bar who imputed charges of improper influence, corruption and other misdeeds to members of the SC was suspended from the practice of law.

The case stemmed from the resolution of the Supreme Court stopping the respondent from investigating graft cases involving Antique Gov. Enrique Zaldivar. The Court ruled that since the adoption of the 1987 Constitution, respondent’s powers as Tanodbayan have been superseded by the creation of the Office of the Ombudsman, he however becomes the Special Prosecutor of the State, and can only conduct an investigation and file cases only when so authorized by the Ombudsman. A motion for reconsideration was filed by the respondent wherein he included statements which were unrelated in the Issue raised in the Court. This include: (a)That he had been approached twice by a leading member of the court and he was asked to 'go slow on Zaldivar and 'not to be too hard on him; (b) That he "was

approached and asked to refrain from investigating the COA report on illegal disbursements in the Supreme Court because 'it will embarass the Court;" and (c) that in several instances, the undersigned respondent was called over the phone by a leading member of the Court and was asked to dismiss the cases against two Members of the Court." Statements of the respondent saying that the SC’s order '"heightens the people's apprehension over the justice system in this country, especially because the people have been thinking that only the small fly can get it while big fishes go scot-free” was publicized in leading newspapers.Now, the Court Resolved to require respondent to explain in writing why he should not be punished for contempt of court for making such public statements reported in the media. Respondent then sought to get some members of the Court to inhibit themselves in the resolution of the Zaldivar case for alleged bias and prejudice against him. A little later, he in effect asked the whole Court to inhibit itself from passing upon the Issue involved in proceeding and to pass on responsibility for this matter to the Integrated Bar of the Philippines, upon the ground that respondent cannot expect due process from this Court, that the Court has become incapable of judging him impartially and fairly. The Court found respondent guilty of contempt of court and indefinitely suspended from the practice of law. Now, he assails said conviction, invoking his freedom of speech. Counsel for respondent urges that it is error "for this Court to apply the "visible tendency" rule rather than the "clear and present danger" rule in disciplinary and contempt charges."

RULING: All constitutional freedoms, not absolute and freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests.

Fernando vs. Court of Appeals, 510 SCRA 351, [G.R. No.159751] (Dec. 6, 2006)What is obscenity? The Court defined obscenity as something which is offensive to chastity, decency or delicacy. What is the test of obscenity? The test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.

Another test according to Kottinger is “that which shocks the ordinary and common sense of men as an indecency.” But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.

Who should determine when obscenity should be curtailed? The court will determine when obscenity should be curtailed, as held in Pita vs. CA,

supra., the Supreme Court declared that determination of what is obscene is a JUDICIAL function.

FACTS: Accused (Fernando & Estorninos) were charged with violation of selling pornographic materials. Upon lawful search warrant the police were able seized materials which they deemed obscene and presented it as evidence for the prosecution. The accused waived their right to present evidence. RTC found them guilty of the crime charged. CA affirmed the decision.

RULING: The court ruled that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity. The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public.In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials.

United States vs. Kottinger, 45 Phil. 352 [No. 20569] (Oct. 29, 1923)What happened to Kottinger? The information filed in court charged him with having kept for sale in the store of the Camera Supply Co., obscene and indecedent pictures,What was his business? What was he charged of? Violation of section 12 of Act No. 277 which provides punishment, among other things, for any person who keeps for sale, or exhibits, any obscene or indecent writing, paper, book or other matter

How did the court define “obscene” and “obscenity/”? As meaning something offensive to chastity; decency, or delicacy.What is the test to determine whether something is obscene? The test ordinarily followed by the courts in determining whether a particular publication or other thing is obscene within the meaning of the statutes, is whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. Another test of obscenity is that which shocks the ordinary and common sense of men as an indecency.

FACTS: the defendant was accused of having offered for sale pictures of half-clad members of the non-Christian tribes.It appears that detective Juan Tolentino raided the premises known as Camera Supply Co. and found and confiscated the post-cards which subsequently were used as evidence against J. J. Kottinger, the manager of the company.

ISSUE: WON pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are absence or indecent. 

RULING: the SC acquitted him holding that he had merely presented them in their native attire. That pictures which depict the non-Christian inhabitants of the Philippine Islands as they actually live, without attempted presentation of them in unusual posture or dress, are not offensive to chastity, or foul, or filthy.