Prior restraint - (also referred to as prior censorship or pre-publication censorship) is

censorship imposed, usually by a government, on expression before the expression

actually takes place. (Babst vs NIB)
- refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior
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. 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.
Chilling effect - the inhibition or discouragement of the legitimate exercise of
natural and legal rights by the threat of legal sanction. (Babst vs NIB)
Section 4, Article III (Bill of Rights) of the 1987 Philippine Constitution: 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.
What do speech, expression, and press include?
These include every form of expression, whether oral, written, or electronically
recorded. It also includes movies as well as symbolic speech such as the wearing
of an arm band as a symbol of protest. Peaceful picketing is also covered under this
provision.
What does this provision protect these freedoms from?
This provision protects against two things: 1) prior restraint; and 2) subsequent
punishment.
What is prior restraint?
Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination.
What is subsequent punishment?
Subsequent punishment means official government acts that punish the press or
other forms of expression after the fact of actual publication or dissemination.
Are these prohibitions absolute?
No. There are two tests as to whether prior restraint and/ or subsequent punishment
may be allowed. These are: 1) Dangerous tendency rule; and 2) Clear and present
danger test.
What is the dangerous tendency rule?
It means that speech may be curtailed or punished when it creates a dangerous
tendency to produce a certain evil which the State has the right to prevent. An
example is if the content of the speech or expression tends to stir rebellious

sentiments against the government, or to commit crimes. All it requires, for speech
to be punishable, is that there be a rational connection between the speech and the
evil sought to be avoided.
What is the clear and present danger test?
It means that the speech and expression 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 the State has a right to prevent. Compared to the
dangerous tendency rule, the clear and present danger test requires a greater level
of proximity and degree between the speech and the evil sought to be avoided.
Are there any forms of speech which are not protected by the Constitution?
Yes. These are libel and obscenity.
What is libel?
It is a public and malicious imputation of a crime, or of a vice or a defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead.
How do you know if something is an obscenity?
There are at least three ways: 1) If the average person, applying contemporary
community standards would find that the work, taken as a whole, appeals to the
prurient or sexually malicious interest; 2) If the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the applicable state
law; and 3) If the work, taken as a whole lacks serious literary, artistic, political, or
scientific value.
dangerous tendency doctrine - which permits limitations on speech once a rational
connection has been established between the speech restrained and the danger
contemplated
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
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.
CONTENT BASED SPEECH
Clear and present danger test (commit to memory; concepts) speech is protected
as long as does not bring substantial evil or danger. Except obscenity, fighting
words and speech that intent to endanger the country. PROXIMITY and DEGREE

(Argo movie cannot publish 20 years after cause Iran will war them)
- the restriction is based on the subject matter of the utterance or speech. (Chavez
vs Gonzales GMA wiretapping issue)
CONTENT NEUTRAL SPEECH
Not about the content but time and place and manner (rally in Makati during GMA).
- Merely concerned with the incidents of the speech, or one that merely controls the
time, place or manner, and under well-defined standards
ELECTION RELATED SPEECH
Clear and present danger
RELIGION RELATED SPEECH
Not sure if Freedom of Speech or Freedom of Religion. No clear cut but in Bill of
Rights, Speech is higher than Religion.
Academic freedom of speech
US vs Whitney.
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study
(MIRIAM case)
LIBEL
Article 353 Revised Penal Code
A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead.
Absence of 1 will acquit. (4 elements)
1.
2.
3.
4.

Publication / 3rd person knowledge

Identity
Existence of Malice
Defamatory indication / imputation of discreditable act or vice

Malice in Law - All defamatory statement is malicious except privileged

communication and fair and accurate reporting
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to
be malicious, even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of

any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of
any judicial, legislative or other official proceedings which are of confidential nature,
or of any statement, report or speech delivered in said proceedings, or of any other
act performed by public officers in the exercise of their functions.
Generally, malice is presumed (malice in law) in every defamatory imputation. This
presumption, however, does not arise if the communication is privileged under
Article 354.
Malice in Fact statement done in bad faith / offense
Criminal - kulong
Civil payment; easy to prove (sleepless nights, bothered feeling)
Public officials and personalities less protection because waved part of their privacy.
OBRIEN Test to check if government regulation is unconstitutional.
Warren wrote that when a regulation prohibits conduct that combines "speech" and
"nonspeech" elements, "a sufficiently important governmental interest in regulating
the nonspeech element can justify incidental limitations on First Amendment
freedoms". The regulation must 1) be within the constitutional power of the
government to enact, 2) further an important or substantial government interest, 3)
that interest must be unrelated to the suppression of speech (or "content neutral",
as later cases have phrased it), and 4) prohibit no more speech than is essential to
furtherance of governmental interest.
OBSCENITY
Miller test 4 instances (Miller vs California)
1. Appeals prurient interest
2. Lack of any political, scientific, artistic and cultural value
3. Patently offensive and sexual conduct
IINTELLECTUAL PROPERTY
Patent technical object/solution
Copyright literary idea or concept
Trademark Identifiable sign

CASES
Schenk
Gonzales