Art. III, Sec.

4
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.

Prior Restraint

1. Near v. Minnesota, 238 US 697 – Petitioner was supposed to publish content pertaining to some officials in
Minnesota. Respondent court of Minnesota prevented the petitioner from such publication stating that the
material they intend to publish contravenes a law. Such law penalizes the petitioner by prohibiting the petitioner
from publishing any material in the future. THE COURT held that such prohibition went against the rights of the
petitioner as it permanently enjoined him from publishing any material.
2. Freedman v. Maryland, 380 US 51 – Petitioner questions the validity of respondents power to review all film prior
to their actual release. THE COURT held that the statue allowing respondent to review and ban films are greatly
oppressive and curtails the Petitioner’s freedom of expression.
- a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor's business is to
censor, there inheres the danger that he may well be less responsive than a court-part of an independent branch
of government -- to the constitutionally protected interests in free expression.
- a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity
only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.
o The burden of proving that the film is unprotected expression must rest on the censor.
o The teaching of our cases is that, because only a judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial
determination suffices to impose a valid final restraint.
3. New York Times Co. v. US, 403 US 713 – Respondent hindered the petitioner from publishing materials that were
allegedly against the national security. THE COURT held that such actions were an abuse of power as they were
not able to show the necessary proof to justify such actions. Furthermore, the different justices went on to discuss
how the freedom of speech is meant to be free from any form of restriction as doing so would render such right
pointless.
4. Ayer Prod. PTY. LTD. v. Judge Capulong, 160 SCRA 865 – Petitioner was producing a mini series that depicted
the ADSA Revolution. Respondent Enrile was invited to be one of the characters in the series. When he refused
but petitioner continued production, he filed a complaint against petitioner. THE COURT held that the petitioner
and the production did not contravene or violate any right of the respondent and was allowed to continue with
their production.
- "balancing of interest test"
o "requires a court to take conscious and detailed consideration of the interplay of interests observable in
given situation or type of situation"
5. Eastern Broadcasting v. Dans, Jr., 137 SCRA 628 – Petitioner was allegedly "inciting people to commit acts of
sedition." Respondents decided to take actions against the petitioner and curtailed its operation. THE COURT
held that the issue was moot and academic since the petitioner corporation was already bought by a different
owner.
- clear and present danger rule
o 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,
o examples
 (Primicias v. Fugoso [80 Phil. 71], American Bible Society v. City of Manila [101 Phil. 386],
Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28 SCRA 351], Navarro v. Villegas [31 SCRA
931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on Elections [35 SCRA 285], People v.
Ferrer [48 SCRA 382], and the Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc. [51 SCRA 189].
- American Court in Federal Communications Commission v. Pacifica Foundation
o radio broadcasting, more than other forms of communications, receives the most limited protection from
the free expression clause.
 First, broadcast media have established a uniquely pervasive presence in the lives of all citizens,
Material presented over the airwaves confronts the citizen, not only in public, but in the privacy
of his home.
 Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters
may be prohibited from making certain material available to children, but the same selectivity
cannot be done in radio or television, where the listener or viewer is constantly tuning in and out
6. Alexander v. US - 113 S. Ct. 2766, 125 L. Ed. 2d. 441 – Respondent confiscated obscene material from the
Petitioner. The petitioner contests that such confiscation went against the first amendment by questioning the
difference of prior restraint and subsequent punishment. He argues that there is no difference between the two
and ultimately, they both disregarded his freedom of speech. THE COURT held that there was a difference
between the two and that neither of them violated his freedom of speech.
- prior restraint - "to describe administrative and judicial orders forbidding certain communications when issued
in advance of the time that such communications are to occur."
o Examples
 Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid
speech activities
7. INC v. CA, GR 119673 July 26, 1996 – Respondent Board stopped the Petitioner INC from airing content that
criticized other religions. To do so, the respondent board placed a rating X on the said materials. THE COURT
held that the respondent board has failed to prove that the content is enough to warrant such actions. They stated
that the materials would not cause any immediate harm to the country.
- Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and
present. We have affirmed this preferred status well aware that it is designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of others and with the common good.[16] We have also
laboriously defined in our jurisprudence the intersecting umbras and penumbras of the right to religious
profession and worship.
- The right to religious profession and worship has a two-fold aspect
o freedom to believe - The first is absolute as long as the belief is confined within the realm of thought.
o freedom to act on ones beliefs - subject to regulation where the belief is translated into external acts that
affect the public welfare
- any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed
brows.[19] It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
burden, its act of censorship will be struck down.
- American Bible Society v. City of Manila
o The constitutional guaranty of free exercise and enjoyment of religious profession and worship carries
with it the right to disseminate religious information. Any restraint of such right can be justified like
other restraints on freedom of expression on the ground that there is a clear and present danger of any
substantive evil which the State has the right to prevent.
- Victoriano vs. Elizalde Rope Workers Union
o it is only where it is unavoidably necessary to prevent an immediate and grave danger to the security and
welfare of the community that infringement of religious freedom may be justified, and only to the
smallest extent necessary to avoid the danger.
- Clear and Present Danger Rule
o Schenck v. US
 the question in every case is whether the words used 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 Congress has a right to prevent.
 he test was originally designed to determine the latitude which should be given to speech that
espouses anti-government action.
o Dennis v. United
 n each case [courts] must ask whether the gravity of the evil, discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid the danger. The imminence
requirement of the test was thus diminished and to that extent, the protection of the rule was
weakened.
o Brandenburg v. Ohio
 the imminence requirement, and even added an intent requirement which according to a noted
commentator ensured that only speech directed at inciting lawlessness could be punished.
o the test is still applied to four types of speech:
 speech that advocates dangerous ideas,
 speech that provokes a hostile audience reaction,
 out of court contempt and
 release of information that endangers a fair trial.
- the determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or
lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by
 an administrative body such as a Board of Censors. He submits that a system of prior restraint may only be
validly administered by judges and not left to administrative agencies.
o Freedman v. Maryland
 only a judicial determination in an adversary proceeding ensures the necessary sensitivity to
freedom of expression, only a procedure requiring a judicial determination suffices to impose a
valid final restraint.
o In order for there to be due process of law, the action of the Director of Posts must be subject to revision
by the courts in case he had abused his discretion or exceeded his authority.
o that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that it
was wrong.

Subsequent punishment

Gonzales v. COMELEC, 27 SCRA 835

People v. Perez, 45 Phil. 599

Dennis v. US, 341 US 494

United States v. O’Brien, 391 US 367

Speech and the Electoral Process

Gonzales v. Kalaw-Katigbak, 137 SCRA 717

Sanidad v. COMELEC, 181 SCRA 529

National Press Club v. COMELEC, 207 SCRA 1

Adiong v. COMELEC, March 31, 1992

ABS CBN v. COMELEC, 323 SCRA 811

SWS v. COMELEC, GR 147571, May 5, 2001