CONSTITUTIONAL LAW II

A Quick Guide to Tests and Standards

A. Free Speech
TEST
Clear and
present danger
test

Brandenburg
test (Imminent
lawless action
or IIL)

DEFINITION/REQUISITES/ELEMENTS
There must be a clear and present danger of an evil
substantive enough to warrant state interference. It is a
question of proximity and degree.
Success of the obstruction is unnecessary; the tendency
and intent of the act are sufficient.
State should not forbid advocacy of the use of force or of
law violation, except if advocacy is directed to inciting or
producing imminent lawless action, and is likely to incite
and produce such action.

APPLICATION
Regime for free speech
cases in the Philippines

Advocacy speech
Requisites
1. Incitement
2. Imminence
3. Likelihood

B. Content-based or content-neutral restrictions

OBrien test

1. Regulation is within the constitutional power of

the Government;
2. It furthers an important or substantial
governmental interest;
3. The government interest is unrelated to the
suppression of free expression; and
4. The incidental restriction on alleged First
Amendment freedoms is no greater than is
essential to the furtherance of that interest
If the regulation fails the third prong, it is a contentbased regulation, and therefore restricts a fundamental
right. Strict scrutiny must thus be used. If all four
requisites are met, it is a content-neutral regulation.

Determination of whether
statute is content-based or
content-neutral

C. Standards of judicial review

Rational basis

Immediate
scrutiny

Strict scrutiny

Requisites:
1. Government must allege a state interest.
2. Classification must bear a reasonable relation to
the purpose.
3. There is a strong presumption of validity in favor
of the classification.
Requisites:
1. Government must show the classification serves
an important state interest.
2. Classification must be substantially related to
the interest alleged.

Classification and
differentiation statutes
Applies to gender &
legitimacy cases, contentneutral prohibitions, and
substantive due process
cases (see White Light v. City
of Manila)

1. Government must allege a compelling interest.

2. The regulation must be narrowly tailored to the
interest.
3. It must be the least restrictive means to achieve
such interest.

When regulation infringes

on a fundamental right (i.e.
speech, religion, privacy)

Malice is present when:

1. The author had knowledge of the statements
falsity; or
2. The author recklessly disregarded whether or not
the statement was false.

When statement is made

about a public official,
public figure, or a matter of
public interest

D. Libel
Actual malice
rule

Espaola

A2016

Prof. Florin Hilbay

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TEST
DEFINITION/REQUISITES/ELEMENTS
E. Sexually explicit expression

Pita procedure

Miller test
(Obscenity test)

1. Authorities must apply for a search warrant.

2. They must convince the judge that the materials
to be seized are obscene, and pose a clear and
present danger.
3. The judge must determine whether or not the
materials are obscene, to be resolved on a caseto-case basis and through the judges discretion.
4. If, in the courts opinion, probable cause exists, it
may issue the search warrant.
5. Authorities may sue under Art. 201 of the Revised
Penal Code.
6. Any conviction is subject to appeal. The appellate
court may assess whether or not the properties
seized are indeed obscene.
Material is obscene when:
1. The average person, applying contemporary
community standards would find that the work,
taken as a whole, appeals to prurient interest;
2. The work depicts or describes in a patently
offensive way, sexual conduct specifically defined
by the applicable state law;
3. The work, taken as a whole, lacks serious,
literary, artistic, political, or scientific value.

APPLICATION

When authorities seek to

seize materials for being
obscene

Obscene materials

F. Kinds of constitutional challenge

Facial
challenge
As applied
challenge

Void for
vagueness
doctrine

Overbreadth
doctrine

The law is assailed on its face, meaning that petitioners

seek to declare that it is void in its entirety and in
every applicationeven for parties not yet before the
court.
The law is assailed on the basis of its application to a
persons specific actions.
A law is vague when it lacks comprehensible standards,
such that men of common intelligence must necessarily
guess as to its meaning and differ as to its application.
A vague law is void and unconstitutional because:
1. It violates due process for failure to accord
persons fair notice of the conduct to avoid.
2. Law enforcers have unbridled discretion in
carrying out its provisions.
A law is vague when, in attempting to restrict
unprotected behavior, it also infringes upon protected
freedoms. The basis is the unnecessary broadness of the
law.

Usually paired with a

challenge for overbreadth
When some applications of
the law can still be valid

Generally, free speech cases

G. Religion cases

Sherbert test

If yes to all the questions below, then the statute is

constitutional:
1. Is the belief sincere?
2. Has the right to religious freedom been
burdened?
3. The compelling state interest test:
a. Does the government have an interest
compelling enough to override this belief and
regulate this freedom?
b. Is its means in pursuing the interest the least
restrictive and burdensome on respondents
freedom?

Free exercise cases

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TEST

Lemon test

DEFINITION/REQUISITES/ELEMENTS
If yes to all the questions below, then the statute is
constitutional:
1. Does the statute have a secular legislative
purpose?
2. Does its primary effect neither advance nor
inhibit religion?
3. Does the statute not foster an excessive
entanglement with religion?

APPLICATION

Non-establishment cases

Standards of state-religion relationship (via J. Puno in Estrada v. Escritor, 2003)

Strict
separation

Strict
neutrality

Benevolent
neutrality

Believes that the wall of separation is meant to protect

the state from the church, and that the Religion Clauses
are an absolute barrier to the formal
interdependence of religion and state. Thus religious
institutions cannot receive aid, whether direct or indirect,
and the state cannot adjust its secular programs to ease
the burdens it imposes on the faithful.
A tamer version of strict separation; requires the state to
be neutral towards both believers and non-believers,
instead of being adversarial. It is not hostile to religion,
but it is strict in holding that religion cannot be a
basis to classify for purposes of governmental action.
Gives room for accommodating religion, holding that the
wall is instead meant to protect the church from the state.
It allows interaction between the church and state,
but is strict re: state action, which would threaten
the integrity of religious commitment. In Estrada v.
Escritor, it was held that this was the intent of the
framers of our Constitution.

Usually employed in
American jurisprudence

Relied on in Philippine
jurisprudence

H. Due process

Ang Tibay rules

1. Accused has the right to a hearing, which

includes the right of the party interested or
affected to present his own case and submit
evidence in support thereof.
2. Party must be given an opportunity to present
his case and adduce evidence tending to
establish the rights he asserts. The tribunal
must also consider the evidence presented.
3. The duty to deliberate does not impose the
obligation to decide correctly, but it imposes upon
the tribunal the duty to show that it has
something to support its decision. A decision
with absolutely nothing to support it is a nullity.
4. Evidence to support the finding/conclusion
must be substantial.
5. The decision must be rendered on the
evidence presented at the hearing, or at least
contained in the record and disclosed to the
parties affected.
6. The tribunal or any of its judges must act on
its or his own independent consideration of the
law and facts of the controversy, and not simply
accept a subordinates views in arriving at a
decision.
In all controversial questions, the tribunal must render
its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the
reasons for the decisions rendered.

Rules of due process in

administrative proceedings

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TEST

Principles of
substantive due
process

Contracts
clause

Validity of
ordinances

DEFINITION/REQUISITES/ELEMENTS
Requisites:
1. Law shall be prescribed in harmony with the
general powers of the legislative department of
the Government.
2. The law shall be reasonable in its operation.
3. It shall be enforced according to the regular
methods of procedure prescribed.
It shall be applicable alike to all the citizens of the state
or to all of a class.
The statute restraining contracts must:
1. Have a state obligation that is reasonable and
necessary to serve an important public purpose;
2. Be necessary;
3. Be the only alternative;
4. Meet the purpose of the law;
5. Be essential to the achievement of an important
state purpose.
An ordinance, to be a valid exercise of police power,
must:
1. Not contravene the Constitution or any statute;
2. Not be unfair or oppressive;
3. Not be partial or discriminatory;
4. Not prohibit but may regulate trade;
5. Be general and consistent with public policy;
6. Be reasonable.

APPLICATION

Statutes thought to impair

the freedom to contract

Ordinances, of course

I. Right of privacy

Artificial
trimester
regime

Undue burden
standard

1. First trimester of pregnancyWoman is free to

abort, according to her right before viability
2. End of first trimesterCompelling point, or point
at which state interests begins to override
womans right
3. Second trimesterState and woman compete
over the choice of whether to continue or
terminate the pregnancy
4. Start of third trimesterPoint of viability
5. Third trimesterFetus already viable, abortion
must only be done to save the woman's life
A statute is invalid if it places a substantial obstacle or
undue burden upon the person.

Abortion cases from Roe v.

Wade, until the
abandonment of the regime
in Planned Parenthood v.
Casey

Applied in Planned
Parenthood, to weigh
womans right to decide vs.
state interests

J. Equal protection
Four-prong test

For a classification to be said to apply equally, it must:

1. Rest on substantial distinctions;
2. Be germane to the purposes of the law;
3. Not be limited to existing conditions only;
4. Apply equally to all members of the same class.

Applied in the PH for equal

protection cases. US
jurisprudence uses higher
standards, e.g. intermediate
scrutiny for classifications
based on gender

K. Criminal due process

Requisites of a
valid warrant

Stop and frisk

doctrine

The warrant must:

1. Be issued upon probable cause;
2. Particularly describe the things to be seized.
Whether a reasonably prudent man, given the
circumstances, would be warranted in believing that his
safety or that of others is in danger. A police officer thus
has a right to stop a citizen on the street and pat him for
a weapon, in the interest of the police officers own safety,
and that of others.

Police frisks, as applied in

Terry v. Ohio

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TEST

Miranda
warnings

Additional
rights

References:

DEFINITION/REQUISITES/ELEMENTS
Prior to any questioning while in custodial investigation,
the person arrested or detained must be warned of the
following:
1. He has a right to remain silent, and anything
he says can be used against him in a court of
law.
2. He has the right to counsel, and if he cannot
afford an attorney, one will be appointed for
him prior to questioning, if he so desires.
After such warnings, the individual may waive the
aforementioned rights. Without these warnings, however,
any confession obtained from the accused is
inadmissible.
In addition to the Miranda rights, the Court in the case of
Mahinay stated that a person arrested, detained or
invited under custodial investigation must be informed:
1. In a language known to and understood by him
of the reason for his arrest, and must be shown
the warrant of arrest. Every other warning,
information or communication must be in a
language known to and understood by him.
2. That, at any time, he has the right to
communicate or confer by the most expedient
means (telephone, etc.) with his lawyer, any
member of his immediate family or any medical
doctor, priest or minister chosen by him or by his
counsel or by any member of his immediate
family;
3. That he has a right to be visited by or confer
with accredited national or international
NGOs;
4. That he has a right to waive any of the said
rights provided that he does so voluntarily and
intelligently;
5. That any waiver of the right to a lawyer must be
done in writing and in the presence of counsel;
otherwise, the waiver is void.

- A2015 Consti 2 Finals Reviewer

- B2015 Consti 2 Finals Reviewer
- A2016 Consti 2 Digests

APPLICATION

During custodial
investigation, which begins
once the accused is
subjected to police custody,
or is deprived of his freedom
of action in any significant
way