Free Speech and Suffrage

G.R. No. L-27833 April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and
FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner.

B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political
campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional
grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act.
Thus the question confronting this Court is one of transcendental significance.

It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom of belief and of
expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that occupies a place and to
none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and
the limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming efforts, entailing huge expenditures of
funds and involving the risk of bitter rivalries that may end in violence, to paraphrase the explanatory note of the challenged legislation, could be devoted
to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act in these matters
we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannot escape
under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is
appropriately invoked.

This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory Relief with
Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but treated by this Court as
one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections
now included in the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967, prohibiting the too
early nomination of candidates 2 and limiting the period of election campaign or partisan political activity. 3

The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880 "refers to any
person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected
or not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a proviso that simple expression of
opinion and thoughts concerning the election shall not be considered as part of an election campaign. There is the further proviso that nothing stated in
the Act "shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of
the candidates for public office whom he supports." 4

Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official
candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private
individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No.
4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and their right to form associations
or societies for purpose not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional.

After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of two American
Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally justify its passage and [enforcement]
whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation
is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form associations and
societies for purposes not contrary to law, ..." There was the further allegation that the nomination of a candidate and the fixing of period of election
campaign are matters of political expediency and convenience which only political parties can regulate or curtail by and among themselves through self-
restraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence
of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission on Elections, in
its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions of law, erroneous at that," and
setting forth special affirmative defenses, procedural and substantive character, would have this Court dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At the hearing of
case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios
appeared for the respondent and they were given a period of four days from today within which to submit, simultaneously,, their respective memorandum
in lieu of oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al.
vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the constitutionality of Republic Act No. 4880;
and a divergence of views having developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election
Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the
members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on the issue until after the return of the Justices now on
official leave."

The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as
counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that warn against curtailment in whatever
guise or form of the cherished freedoms of expression, of assemble and of association, all embraced in the First Amendment of the United States
Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios.

Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive exposition of the existence
of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that Act No. 4880 could indeed be looked
upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear
and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by
unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as
well.

The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs above mentioned
having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validity
of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included,
among them. They did file their respective memoranda with this Court and aided it in the consideration of the constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that respondent
Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized as other than a mere
request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the
original stand that under the circumstances it could still rightfully be treated as a petition for prohibition.

The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality ... be now
resolved." 7 It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable
necessity for a ruling, the national elections being, barely six months away, reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged
unconstitutional statute. We are left with no choice then; we must act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who impugns the validity
of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering
that one of the petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not necessarily fatal. In this
jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to restrain the expenditure of public funds through the
enforcement of an invalid or unconstitutional legislative measure. 9

2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police power of the state,
designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined harmful if unstrained and carried for a long
period before elections it necessarily entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in
the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan
pursuits." Evidently for respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press,
freedom of assembly and 'freedom' of association. Would it were as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts us again with the
duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on that border, now as always
delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction not permitting
dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates against a
stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us, it has not been made to appear that
section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the
subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional liberty." 11Another leading State
decision is much more emphatic: "Broad as the power of the legislature is with respect to regulation of elections, that power is not wholly without
limitation. Under the guise of regulating elections, the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation
may not be compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nêt

3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may prove illuminating.
The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our constitutional system. No law shall be passed
abridging the freedom of speech or of the press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 15prosecution for sedition, 16 or action for damages, 17 or contempt
proceedings 18 unless there be a clear and present danger of substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of
attaining the truth, of assuring participation by the people in social including political decision-making, and of maintaining the balance between stability
and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this
constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-
open. 20 It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. "It may indeed best serve
its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of
speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend support to
official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless.
The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the
thought that we hate, no less than for the thought that agrees with us. 22

So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better social judgments
through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened
and invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating
a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually
robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full
potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant." 23

From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition. How is it to be limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus: "These are the
'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be
guarded against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to the above decision "a definite rule in
constitutional law. It provides the criterion as to what words may be public established."

The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "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 acts 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.

We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC
create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest and indisputable. It adopted
the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear
and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be
"relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." 27 Only thus may there
be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at
those extreme borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question in every case is
whether the words used in such circumstances and 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. It is a question of proximity and degree." 29

This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right to prevent.
Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a causal connection with
the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and
immediate danger. The danger must not only be probable but very likely inevitable.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. It likewise
extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v.
Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free speech. Assembly means a right on the
part of citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy, the welfare of society and
orderly administration of government have demanded protection for public opinion." To paraphrase the opinion of Justice Rutledge speaking for the
majority in Thomas v. Collins,31 it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single
guaranty with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical
are inseparable. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights wherein they are contained,
applies to all. As emphatically put in the leading case of United States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right
on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent.

5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a constitutional provision of
this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever
doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an
indigenous cast. It can trace its origin to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily the first amendment of
her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they
need if they are to remain viable and continue to contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the
significance of the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for himself, is that of combining his
exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost inalienable in its
nature as the right of personal liberty. No legislator can attack it without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren existence if he
could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more common form of associations
may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and
isolation life is enriched and becomes more meaningful.

In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent then the likelihood
of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will simply cease to exist; minority
groups may be outlawed, constitutional democracy as intended by the Constitution may well become a thing of the past.

Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates,
will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this freedom of association.

It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of
any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would
not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position
under the due process version of the First Amendment. But the associational rights protected by the First Amendment are in my view much broader and
cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. In my view, government can neither legislate
with respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or
unpopular, that exist in this country." 36

Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies
when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be interpreted? It is submitted that it is another
way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety,
there is no justification for abridging the right to form association societies. 37 As was so aptly stated: "There is no other course consistent with the Free
Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he
embraces, and the people he associates with are no concern to government — until and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above principles in
mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein
on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of
assembly and freedom of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced as to its
actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded so high a place in our
constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment was in response
to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless
curbed or remedied. To assert otherwise would be to close one's eyes to the realities of the situation. Nor can we ignore the express legislative purpose
apparent in the proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election
campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the candidates for public office whom he supports." Such limitations qualify the entire provision
restricting the period of an election campaign or partisan political activity.

The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It shall be
unlawful for any political party political committee, or political group to nominate candidates for any elective public officio voted for at large earlier than
one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an
election." 40

The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not
such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain in validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to Republic Act No. 4880:
"It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons whether or not a political party or political
committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding
an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term
'candidate' refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate
of candidacy or has been nominated by any political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts
designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other conclusion can
there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of press freedom as well as freedom
of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on speech; a man
may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. 41 Where the statutory provision then operates
to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is
inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are vague and fluid ... may be as much of
a trap for the innocent as the ancient laws of Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as
supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44

7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of free speech and
press, of assembly, and of association cut deeply, into their substance. This on the one hand.

On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the circumstances
then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is need for refraining from the outright
assumption that the constitutional infirmity is apparent from a mere reading thereof.

For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be
called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court, though in varying degrees, in the
appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls
for measures that may bear heavily on the exercise of the cherished rights of expression, of assembly, and of association.

This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights. The clear and
present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be
limited in scope.

There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election campaign" or "partisan
political activity" must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of
association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election
campaign" or "partisan political activity."

They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate or party;(c)
making speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate for public office; (d)
publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or
against any party; (f) giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the
objection that may be raised as to vagueness has been minimized, if not totally set at rest. 46

8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar as the formation of
organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda
or both for or against a candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for election purposes,
either directly or indirectly, is equally free from constitutional infirmity. 48

The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar
assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, 49 leaving
untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices
entertaining the opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer of this opinion
suffers from the gravest doubts. For him, such statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss
of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition to view with
sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the preferred right of freedom of expression.
From the outset, such provisions did occasion divergence of views among the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a clear and present danger of a substantive evil, the debasement of the electoral
process.

The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or indirectly, by an
individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for
public office, 52 or the publication or distribution of campaign literature or materials, 53
suffer from the corrosion of invalidity. It lacks however one more
affirmative vote to call for a declaration of unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects on the public interest
with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that
violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and
corruption, with the right to suffrage being bartered, was further magnified.

Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding the right of suffrage, the legislative
body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that without the limitations thus set forth in
the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such approach
may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion reached by the minority that the above poisons
of the statute now assailed has passed the constitutional test is devoid of merit.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the
election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution cannot by any law be abridged.

More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger doctrine, it is the
consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been
more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the
clear and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that makes possible oppressive or
capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend
the constitutional principle that "a governmental purpose constitutionally subject to control or prevent activities state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is the touchstone in an area so closely
related to our most precious freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on their face
inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind. 59

Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the challenged
sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of expression vitiated by their
latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing coverage of the practices sought to be restrained
would seriously pose.

Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada, appearing before us as amicus
curiae. He did clearly explain that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response
not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption
as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. He did invite our attention
likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests
the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative
determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus provided: "That simple expressions
or opinion and thoughts concerning the election shall not be considered as part of an election campaign [and that nothing in the Act] shall be understood
to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office
whom he supports. 60 If properly implemented then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of association are concerned. It is its
opinion that it would be premature to say the least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication
arises only if in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called upon, under this
approach, to anticipate each and every problem that may arise. It is time enough to consider it when there is in fact an actual, concrete case that
requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. There is full
acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to what otherwise would be
liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the press, of assembly, and of association. We
cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice Laurel: "This Court
is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as manifested through proper organs... But, in the same
way that it cannot renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61

We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it is not always
possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the legislative judgment arrived at, with
its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due
reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the sections of the challenged statute. The
necessary two-third vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.

G.R. No. 90878 January 29, 1990

PABLITO V. SANIDAD, petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.
MEDIALDEA, J.:

This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional
guarantees of the freedom of expression and of the press.

On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS
REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain
Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said
Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226
dated December 27, 1989.

The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other
pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous
Region.

In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the
BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of
Comelec Resolution No. 2167, which provides:

Section 19. Prohibition on columnists, commentators or announcers. — During the plebiscite campaign period, on the day before and on the
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.

It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression
and of the press enshrined in the Constitution.

Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and
necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision of
COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the press and further imposes subsequent
punishment for those who may violate it because it contains a penal provision, as follows:

Article XIII, Section 122, Election Offenses and Banned Acts or Activities. — Except to the extent that the same may not be applicable
plebiscite. the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263 and
Article' XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite governed by this Resolution.

Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in
fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue.

On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing and implementing
Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition.

On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment.

Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the
freedom of expression and of the press. Rather it is a valid implementation of the power of the Comelec to supervise and regulate media during election
or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines.

It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and/or from campaigning for or
against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided
under Sections 90 and 92 of BP 881:

Section 90. Comelec Space. — 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 within the area in which the newspaper is circulated.

Section 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.

Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of the
questioned Section 19 of Comelec Resolution 2167.

Article IX-C of the 1987 Constitution provides:

The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding
free, orderly, honest, peaceful and credible elections.

Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:

Prohibited forms of election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa
Blg. 881, it shall be unlawful: ...
 (b) for any newspaper, 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 Sections 90
and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidate for any elective
office shall take a leave of absence from his work as such during the campaign period. (Emphasis ours)

However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and
enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information
to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns
and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give
any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator,
announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd
par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the
prejudice of other candidates unless required to take a leave of absence.

However, 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.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was
assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the
electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case
does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in
favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite.

Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitioner-columnist from expressing his
views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time,
the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the
forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is
tantamount to a restriction of petitioner's freedom of expression for no justifiable reason.

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.

ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional. The
restraining order herein issued is hereby made permanent.

SO ORDERED.

G.R. No. 102653 March 5, 1992

NATIONAL PRESS CLUB, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

G.R. No. 102925 March 5, 1992

PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman and President, and FRAULIN A. PEÑASALES as
its Corporate Secretary, petitioners,
vs.
COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman; HON. GUILLERMO CARAGUE and HON. ROSALINA
S. CAJUCOM, respondents.

G.R. No. 102983 March 5, 1992

KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK; MOLAVE BROADCASTING NETWORK;
MASBATE COMMUNITY BROADCASTING CO., INC., RADIO MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS
BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE BROADCASTING CORP.; MAGILIW COMMUNITY
BROADCASTING CO., INC.; for themselves and in behalf of the mass media owners as a class; ANDRE S. KHAN; ARCADIO M. CARANDANG,
JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE E. ESCANER, JR.;
RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO RAMIREZ; for themselves as voters and in behalf of the
Philippine electorate as a class; ORLANDO S. MERCADO and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and
in behalf of all candidates in the May 1992 election as a class, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

FELICIANO, J.:

In the three (3) consolidated Petitions before us, the common question raised by petitioners is the constitutionality of Section 11 (b) of Republic Act No.
6646.

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 issues and of credentials of the candidates is being curtailed.

It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 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 issues. 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 issues in the election thereby curtailing and limiting the right of voters to information and opinion.

The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act No. 6646, known as the Electoral
Reforms Law of 1987:

Sec. 11 Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of
Batas Pambansa Blg. 881, it shall be unlawful;

xxx xxx xxx

b) 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.
(Emphasis supplied)

Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as the Omnibus Election Code of the
Philippines, which provide respectively as follows:

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.

xxx xxx xxx

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. (Emphasis supplied)

The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former
from enjoying the undue advantage offered by huge campaign "war chests." Section 11 (b) prohibits the sale or donation of print space and air time "for
campaign or other political purposes" except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus
Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province or city and "Comelec time" on
radio and television stations. Further, the Comelec is statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of charge, equal
and impartial basis among all candidates within the area served by the newspaper or radio and television station involved.

No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of Republic Act No. 6646) in relation
to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special importance and urgency in a country which, like ours, is characterized
by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our
population falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly legitimate one; it has also
been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution which provides as follows:

Sec. 4. The Commission [on Elections] may, during the election period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants,
special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums
among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis
supplied)

The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for
the operation of media of communication and information. The fundamental purpose of such "supervision or regulation" has been spelled out in the
Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the
use of such media facilities, in connection with "public information campaigns and forums among candidates." 1

It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the
press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a
specific limited period — i.e., "during the election period." It is difficult to overemphasize the special importance of the rights of freedom of speech and
freedom of the press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by which
the people identify those who shall have governance over them. Thus, it is frequently said that these rights are accorded a preferred status in our
constitutional hierarchy. Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values
even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of
financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article
II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit
political dynasties as may be defined by law." 2

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of
supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office,
although such supervision or regulation may result in some limitation of the rights of free speech and free press. For supervision or regulation of the
operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one
— that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly
proving that assertion. 3

Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police power of the State and the
requisites for constitutionally valid exercise of that power. The essential question is whether or not the assailed legislative or administrative provisions
constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an
election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional
repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of
supervision or regulation of media operations during election periods.
In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations resulting from the particular measure
being assayed upon freedom of speech and freedom of the press are essential considerations. It is important to note that the restrictive impact upon
freedom of speech and freedom of the press of Section 11 (b) is circumscribed by certain important limitations.

Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution,
Section 11 (b) is limited in its applicability in time to election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under
another specific grant of authority by the Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant
election period.

Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that it purports to apply only to the
purchase and sale, including purchase and sale disguised as a donation, 4 of print space and air time for "campaign or other political purposes." Section
11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or news-worthy events relating to
candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and
so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum,
Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for
political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The above limitation in scope of application of Section 11 (b) — that it does not restrict either the reporting of or the expression of belief or opinion or
comment upon the qualifications and programs and activities of any and all candidates for office — constitutes the critical distinction which must be
made between the instant case and that of Sanidad v. Commission on Elections.5 In Sanidad, the Court declared unconstitutional Section 19 of Comelec
Resolution No. 2167 which provided as follows:

Sec. 19. Prohibition on Columnists, Commentators or Announcers — 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.

Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No. 6766 on the ratification or adoption
of the Organic Act for the Cordillera Autonomous Region. The Court held that Resolution No. 2167 constituted a restriction of the freedom of expression
of petitioner Sanidad, a newspaper columnist of the Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said:

. . . [N]either 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 the plebiscite. Therefore, Section 19 of Comelec
Resolution No. 2167 has no statutory basis." 6 (Emphasis partly in the original and partly supplied)

There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition the purchase by or donation to the
Comelec of print space or air time, which space and time Comelec is then affirmatively required to allocate on a fair and equal basis, free of charge,
among the individual candidates for elective public offices in the province or city served by the newspaper or radio or television station. Some of the
petitioners are apparently apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis among the
several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by unequal or unfair allocations effected by Comelec
will have appropriate judicial remedies available, so long at least as this Court sits. Until such time, however, the Comelec is entitled to the benefit of the
presumption that official duty will be or is being regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral
Commission7 that the possibility of abuse is no argument against the concession of the power or authority involved, for there is no power or authority in
human society that is not susceptible of being abused. Should it be objected that the Comelec might refrain from procuring "Comelec time" and
"Comelec space," much the same considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure"
"Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec will carry out that statutory duty in this connection, and if it
does fail to do so, once again, the candidate or candidates who feel aggrieved have judicial remedies at their disposal.

The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting, opinion or commentary about
candidates, their qualifications and platforms and promises. Newspaper, radio broadcasting and television stations remain quite free to carry out their
regular and normal information and communication operations. Section 11 (b) does not authorize any intervention and much less control on the part of
Comelec in respect of the content of the normal operations of media, nor in respect of the content of political advertisements which the individual
candidates are quite free to present within their respective allocated Comelec time and Comelec space. There is here no "officious functionary of [a]
repressive government" dictating what events or ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV
screens. There is here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in context, in fact does is to limitpaid partisan
political advertisements to for a other than modern mass media, and to "Comelec time" and "Comelec space" in such mass media.

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. Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or empty
pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into
operation is designed and may be expected to bring about or promote equal opportunity, and equal time and space, for political candidates to inform all
and sundry about themselves, cannot be gainsaid.

My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is a fact of life that cannot be
corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is
that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also
inaccessible to his strained rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election
Code, place political candidates on complete and perfect equality inter se without regard to their financial affluence or lack thereof. But a regulatory
measure that is less than perfectly comprehensive or which does not completely obliterate the evil sought to be remedied, is not for that reason alone
constitutionally infirm. The Constitution does not, as it cannot, exact perfection in governmental regulation. All it requires, in accepted doctrine, is that the
regulatory measure under challenge bear a reasonable nexus with the constitutionally sanctioned objective. That the supervision or regulation of
communication and information media is not, in itself, a forbidden modality is made clear by the Constitution itself in Article IX (C) (4).

It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves may be seen to be
not unduly repressive or unreasonable. For, once again, there is nothing in Section 11 (b) to prevent media reporting of and commentary on
pronouncements, activities, written statements of the candidates themselves. All other fora remain accessible to candidates, even for political
advertisements. The requisites of fairness and equal opportunity are, after all, designed to benefit the candidates themselves.

Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally disregarded. Realistically, the only limitation
upon the free speech of candidates imposed is on the right of candidates to bombard the helpless electorate with paid advertisements commonly
repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute
invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home simply to flick off his radio of
television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or television time in many, if not all, the major
stations or channels. Or they may directly or indirectly own or control the stations or channels themselves. The contemporary reality in the Philippines is
that, in a very real sense, listeners and viewers constitute a "captive audience." 8

The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted,
not so much to inform and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications
or programs as to appeal to the non-intellective faculties of the captive and passive audience. The right of the general listening and viewing public to be
free from such intrusions and their subliminal effects is at least as important as the right of candidates to advertise themselves through modern electronic
media and the right of media enterprises to maximize their revenues from the marketing of "packaged" candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to costs.

SO ORDERED.

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile"
places, public or private, and limit their location or publication to the authorized posting areas that it fixes.

On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code,
Republic Acts Nos. 6646 and 7166 and other election laws.

Section 15(a) of the resolution provides:

Sec. 15. Lawful Election Propaganda. — The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than
eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only
in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof.

Section 21 (f) of the same resolution provides:

Sec. 21(f). Prohibited forms of election propaganda. —

It is unlawful:

xxx xxx xxx

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile
or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or
political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more
than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis
supplied)

xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which
provides:

Lawful election propaganda. — Lawful election propaganda shall include:

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches
in width and fourteen inches in length;

(b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at
the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not
exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week
before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or

(d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all
interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the
Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice
within one week after the authorization has been granted. (Section 37, 1978 EC)

and Section 11(a) of Republic Act No. 6646 which provides:

Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election
propaganda in any place, whether private, or public, except in the common poster areas and/or billboards provided in the
immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political
party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided,
 Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding
three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed
within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied)

Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the
posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the
Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print
political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of
decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11,
1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election
Registrars in the entire country as to the location of the supposed "Comelec Poster Areas."

The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in
designated areas provided for by the COMELEC itself is null and void on constitutional grounds.

First — the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no
public interest substantial enough to warrant the kind of restriction involved in this case.

There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on
this basic freedom.

All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v.
Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970])

This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom.
(Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Paño, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights
and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away.

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic
and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964];
cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many
restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean
and honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of
information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra)

The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental
public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests — individual freedom on one hand and
substantial public interests on the other — is made even more difficult in election campaign cases because the Constitution also gives specific authority
to the Commission on Elections to supervise the conduct of free, honest, and orderly elections.

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and
manner of elections, to wit:

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants special
privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms
among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c)
section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653,
March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign
activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to
reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The
gray area is rather wide and we have to go on a case to case basis.

There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it
becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate.

For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a
hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse.
By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable
opportunities may have been lost.

When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked
against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the
efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.

There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that
regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the
Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or
not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts
off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective.

Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the regulation in
the present case of a different category. The promotion of a substantial Government interest is not clearly shown.

A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the
 incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at
377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984])

The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is
no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under
the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing instrument to be stilled:

The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the
State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting
legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by
the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the
character of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or
remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in
other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must
have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion
for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation
strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be
furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers
or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with
less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a
sticker or decal on his private property.

Second — the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth.

A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).

In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose
cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The
breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.

In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature
at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish
legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four
different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances
invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should
be astute to examine the effect of the challenged legislation. 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," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84
L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society,"
but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in
any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals
and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In
consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides
that no person shall be deprived of his property without due process of law:

Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential attributes.

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of
it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup.
Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save
by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917])

As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the
consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and
stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information:

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free
society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.
The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide
whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution,
the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the
part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public
or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what
overzealous and partisan police officers, armed with a copy of the statute or regulation, may do.
The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or
bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446
[1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer."

Third — the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies,
mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals
and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance.

Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1,
Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common
good." (Emphasis supplied)

It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the
owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the
candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the
same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The
owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible
encroachment of his liberties.

In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the
COMELEC becomes censorship which cannot be justified by the Constitution:

. . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether
proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty
to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of
government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands.
Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on
its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard
what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate
what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate
branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any
governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v.
Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It
is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting
the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective
positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for
Senator. The public does not know who are aspiring to be elected to public office.

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a
person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of
the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC
prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that
"decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and
VOID.

SO ORDERED.

G.R. No. 208062, April 07, 2015

SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

LEONEN, J.:

This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to Rule 65, of the 1997 Rules of Civil Procedure praying that
respondent Commission on Elections' Resolution No. 96742 dated April 23, 2013 be nullified and set aside and that the Commission on Elections be
permanently enjoined from enforcing the same Resolution, as well as prosecuting Social Weather Stations, Inc. and Pulse Asia, Inc. for violating it or
otherwise compelling compliance with it.3

Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather Stations, Inc. (SWS) and Pulse Asia, Inc. (Pulse Asia), as well as
"other survey firms of similar circumstance"4 to submit to COMELEC the names of all commissioners and payors of all surveys published from February
12, 2013 to April 23, 2013, including those of their "subscribers." 5

SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of pre-election surveys.6

As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-election survey on voters' preferences for senatorial
candidates. Thereafter, it published its findings.7 The following question was asked in the survey:

Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga SENADOR ng PILIPINAS? Narito ang listahan ng
mga kandidato. Paki-shade o itiman po ang naaangkop na oval katabi ng pangalan hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong
pumili ng hanggang labindalawang (12) kandidato.

(LIST OF CANDIDATES OMITTED)

If the elections were held today, whom would you most probably vote for as SENATORS of the PHILIPPINES? Here is a list of candidates. Please
shade the oval beside the name of the persons you would most likely vote for. You may choose up to twelve (12) candidates.

(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)

On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United Nationalist Alliance (UNA), wrote Atty. Esmeralda
Ladra, Director of COMELEC's Law Department.9 In his letter,10 Tiangco asked COMELEC to "compel [SWS] to either comply with the directive in the
Fair Election Act and COMELEC Resolution No. 9[6]1[5] and give the names or identities of the subscribers who paid for the [pre-election survey
conducted from February 15 to February 17, 2013], or be liable for the violation thereof, an act constitutive of an election offense."11

Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among others, that he "be furnished the identity of persons who paid for the
[pre-election survey conducted from February 15 to February 17, 2013] as well as those who subscribed to it."12 Sometime in March 2013, SWS
supposedly replied to Tiangco, "furnishing [him] with some particulars about the survey but [without] disclosing] the identity of the persons who
commissioned or subscribed to the survey."13

Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the COMELEC En Bane issued the Order 14 dated April 10, 2013
setting the matter for hearing on April 16, 2013. The same Order directed SWS to submit its Comment within three (3) days of receipt.15 On April 12,
2013, Pulse Asia received a letter from COMELEC "requesting its representative to attend the COMELEC hearing on 16 April 2013."16

SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S. Brillantes, Jr. (COMELEC Chairman Brillantes) stated that the
proceeding was merely a clarificatory hearing and not a formal hearing or an investigation. 17

On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire dispositive portion of this Resolution reads:

WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby RESOLVES, to DIRECT the SWS, Pulse Asia and other survey firms
of similar circumstance to submit within three (3) days from receipt of this Resolution the names of all commissioners and payors of surveys published
from February 12, 2013 to the date of the promulgation of this Resolution for copying and verification by the Commission. The submission shall include
the names of all "subscribers" of those published surveys. Such information/data shall be for the exclusive and confidential use of the Commission;

RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must be accompanied by all the information
required in Republic Act no. 9006, including the names of commissioners, payors and subscribers.

This resolution shall take effect immediately after publication.

A violation of these rules shall constitu[t]e an election offense as provided in Republic Act no. 9006, or the Fair Election Act.18 (Emphasis in the original)

As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the 1987 Constitution and Sections 5.1 to 5.320 of Republic Act No.
9006, otherwise known as the Fair Election Act, as implemented by COMELEC Resolution No. 9615.21

SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as of their filing before this court of the present Petition, they had
not been furnished copies of Resolution No. 9674.22(They emphasized that while a certified true copy of this Resolution was attached to their Petition,
this was a copy which they themselves secured "for the purpose of complying.with the requirement that Rule 65 petitions must be accompanied by a
certified true copy of the assailed order or resolution[.]"23)

In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC Chairman Brillantes that they had not received a copy of Resolution No.
9674. They also articulated their view that Resolution No. 9674 was tainted with irregularities, having been issued ultra vires (i.e., in excess of what the
Fair Election Act allows) and in violation of the non-impairment of contracts clause of the Constitution. They also expressed their intention to bring the
matter before this court on account of these supposed irregularities. Thus, they requested that COMELEC defer or hold in abeyance Resolution No.
9674's enforcement.25

On May 8, 2013, the COMELEC Law Department issued a Notice26 to SWS (and also to Pulse Asia) directing it to furnish COMELEC with a list of the
names of all "commissioners, subscribers, and payors of surveys published from February 12, 2013 until April 23, 2013." 27 SWS was warned that failure
to comply with the Notice shall constitute an election offense punishable under the Omnibus Election Code.28

On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that a Complaint "for violation of Section 264[,] par. 1 and 2 of the
Omnibus Election Code30 in relation to R.A. 9006"31 was filed against them. (This was docketed as E.O. Case No. 13-222). They were also directed to
appear and to submit their counter-affidavits and other supporting documents at the hearing set on August 6, 2013. 32

SWS and Pulse Asia maintained that before receiving the Subpoena, they were never informed that a criminal case had been filed against them. They
added that they were never furnished copies of the relevant criminal Complaint. 33

On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed the present Petition.34 They assail Resolution No. 9674 as having
been issued ultra vires. They are of the position that Resolution No. 9674, in requiring the submission of information on subscribers, is in excess of what
the Fair Election Act requires.35 Likewise, they, assert that Resolution No. 9674 transgresses the Fair Election Act in making itself executory immediately
after publication.36 Moreover, they claim that it violates the non-impairment of contracts clause of the Constitution,37 and was enforced in violation of their
right to due process (as they were charged with its violation despite not having been properly served with copies of the complaint filed against
them).38 Petitioners pray for the issuance of a temporary restraining order and/or writ of preliminary injunction in the interim.39

In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment on the Petition. In the same Resolution, this court issued a
temporary restraining order "enjoining the enforcement of COMELEC Resolution No. 9674 with respect to submission of the names of regular
subscribers but not to the submission of (1) the names of specific subscribers for the limited period of February 12, 2013 to April 23, 2013 who have paid
a substantial amount of money for access to survey results and privileged survey data; and (2) the names of all commissioners and payors of surveys
published within the same period."41

On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014, petitioners filed their Joint Reply.43

In this court's February 18, 2014 Resolution,44 the present Petition was given due course, and the parties were directed to file their memoranda.
Petitioners complied on May 16, 201445 and COMELEC on June 25, 2014.46

For resolution are the following issues:

First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the names of "subscribers" of election surveys;

Second, whether the rights of petitioners to free speech will be curtailed by the requirement to submit the names of their subscribers;

Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the names of their subscribers, violates the constitutional proscription
against the impairment of contracts (Article II, Section 10);

Fourth, whether at the time petitioners were required by COMELEC to reveal the names of the subscribers to their election surveys, Resolution No. 9674
was already in force and effect; and

Lastly, whether COMELEC deprived petitioners of due process of law when it:

a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election offense; and

b) refused to specify the election offense under which they were being prosecuted.
We sustain the validity of Resolution No. 9674. The names of those who commission or pay for election surveys, including subscribers of survey firms,
must be disclosed pursuant to Section 5.2(a) of the Fair Election Act. This requirement is a valid regulation in the exercise of police power and effects
the constitutional policy of "guarantee[ing] equal access to opportunities for public service[.]" 47 Section 5.2(a)'s requirement of disclosing subscribers
neither curtails petitioners' free speech rights nor violates the constitutional proscription against the impairment of contracts.

However, it is evident that Resolution No. 9674 was promulgated in violation of the period set by the Fair Election Act. Petitioners were also not served a
copy of Resolution No. 9674 with which they were asked to comply. They were neither shown nor served copies of the criminal Complaint subject of
E.O. Case No. 13-222. Petitioners' right to due process was, thus, violated.

Petitioners assail Resolution No. 9674's requirement of submission of names of subscribers, including those who did not commission or pay for a
specific survey or cause its publication, for being ultra vires. They maintain that the Fair Election Act "as it was written by Congress covers only those
who commission or pay for a particular election survey, and requires disclosure of their names only when that particular survey is published."48 From
this, they add that COMELEC exceeded its authority — "creating] an election offense where there was none before"49 — in considering as an election
offense any violation of Resolution No. 9674.

COMELEC, for its part, insists on the "wide latitude of discretion" 50 granted to it in the performance of its constitutional duty to "[e]nforce and administer
all laws and regulations relative to the conduct of an election[.]" 51 It adds that "as the specialized constitutional body charged with the enforcement and
administration of election laws,"52 its contemporaneous construction of Section 5.2(a) of the Fair Election Act is "entitled to great weight and
respect."53 Citing the supposed legislative intent of Section 5.2 as "broaden[ing] the subject of disclosure,"54 COMELEC claims that Section 5.2(a) "draws
no distinction between the direct payors and the indirect payors of the survey." 55 It adds that requiring the disclosure of survey subscribers addresses the
requirement of reporting election expenditures by candidates and political parties, thereby helping COMELEC check compliance with this requirement.56

Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text but also with the purpose for which it, along with the Fair Election
Act, was adopted, sustains COMELEC's position.

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or ensuring] equal opportunity for public service" 57 and to this end, stipulates
mechanisms for the "supervision] or regulation of] the enjoyment or utilization of all franchises or permits for the operation of media of communication or
information[.]"58 Hence, its short title: Fair Election Act.

Situated within the constitutional order, the Fair Election Act provides means to realize the policy articulated in Article II, Section 26 of the 1987
Constitution to "guarantee equal access to opportunities for public service[.]" Article II, Section 26 models an understanding of Philippine political and
electoral reality. It is not merely hortatory or a statement of value. Among others, it sums up an aversion to the perpetuation of political power through
electoral contests skewed in favor of those with resources to dominate the deliberative space in any media.

Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act represents the legislature's compliance with the requirement of
Article XIII, Section 1: "Congress . . . give[s] highest priority to the enactment of measures that. . . reduce . . . political inequalities ... by equitably
diffusing wealth and political power for the common good." 59

Moreover, the constitutional desire to "guarantee equal access to opportunities for public service" 60 is the same intent that animates the Constitution's
investiture in COMELEC of the power to "supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary."61

Specific provisions in the Fair Election Act regulate the means through which candidates for elective public office, as well as political parties and groups
participating in the party-list system, are able to make themselves known to voters, the same means through which they earn votes.

Section 3 permits the use of lawful election propaganda.62 Section 4 regulates published or printed, and broadcast election propaganda. 63 Section 6
governs access to media time and space.64 Sections 7 and 8 provide for COMELEC's competencies (i.e., affirmative action, and the so-called
"COMELEC Space" and "COMELEC Time") that enable it to equalize candidates' exposure to voters. 65 Section 9 regulates venues for the posting of
campaign materials.66 Section 10 provides for parties' and candidates' right to reply.67Section 11 requires media outlets to make available the use of their
facilities for election propaganda at discounted rates. 68

The Fair Election Act also governs published surveys during elections.

Section 5.1 defines election surveys-as "the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications,
platforms or a matter of public discussion in relation to the election, including voters' preference for candidates or publicly discussed issues during the
campaign period[.]" Sections 5.2 and 5.3 provide regulations that facilitate transparency with respect to ' election surveys. Section 5.469 is no longer in
effect, having been declared unconstitutional in this court's May 5, 2001 Decision in Social Weather Stations and Kamahalan Publishing Corp. v.
COMELEC.70 Section 5.571pertains to exit polls.

Section 5.2 enumerates the information that a person publishing an election survey must publish along with the survey itself:

5.2 During the election period, any person, natural as well as juridical, candidate or organization who publishes a survey must likewise publish the
following information:chanroblesvirtuallawlibrary

a. The name of the person, candidate, party or. organization who commissioned or paid for the survey;
b. The name of the person, polling firm or survey organization who conducted the survey;
c. The period during which the survey was conducted, the methodology used, including the number of individual respondents and the areas from
which they were selected, and the specific questions asked;
d. The margin of error of the survey;
e. For each question for which the margin of error is greater than that reported under paragraph (d), the margin of error for that question; and
f. A mailing address and telephone number, indicating it as an address or telephone number at which the sponsor can be contacted to obtain a
written report regarding the survey in accordance with Subsection 5.3. (Emphasis supplied)

Section 5.3 facilitates the inspection, copying, and verification not only of an election survey but also of the raw data used as bases for its conclusions:

5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection, copying and verification by the COMELEC or
by a registered political party or a bona fide candidate, or by any COMELEC-accredited citizen's arm. A reasonable fee sufficient to cover the costs of
inspection, copying and verification may be charged.

As with all the other provisions of the Fair Election Act, Section 5 is a means to guarantee equal access to the deliberative forums essential to win an
elective public office. Any reading of Section 5 and of its individual components, such as Section 5.2(a), cannot be divorced from this purpose.

The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that election surveys are not a mere descriptive
aggregation of data. Publishing surveys are a means to shape the preference of voters, inform the strategy of campaign machineries, and ultimately,
affect the outcome of elections. Election surveys have a similar nature as election propaganda. They are expensive, normally paid for by those
interested in the outcome of elections, and have tremendous consequences on election results.

II
Views vary on the precise extent to which surveys or "polls" shape voter preferences, if at all.

Election surveys have been critiqued for amplifying the notion of an election as a "horse race" 72 and for reducing elections to the lowest common
denominator of percentage points or a candidate's erstwhile share in the vote market rather than focusing on issues, principles, programs, and
platforms.

Several possible, albeit conflicting, effects of surveys on voter behavior have been postulated:

First, there is the bandwagon effect where "electors rally to support the candidate leading in the polls."73 This "assumes that knowledge of a popular
'tide' will likely change voting intentions in [favor] of the frontrunner, that many electors feel more comfortable supporting a popular choice or that people
accept the perceived collective wisdom of others as being enough reason for supporting a candidate." 74

Second, there is the underdog effect where "electors rally to support the candidate trailing in the polls."75 This shift can be motivated by sympathy for
the perceived underdog.76

Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to do so," 77 having been alerted to the fact of an
election's imminence.78

Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that their candidate or party will win[.]" 79

Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the chances of winning[.]"80

Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls wrong[.]"81

Election surveys published during election periods create the "politics of expectations." 82 Voters act in accordance with what is perceived to be an
existing or emerging state of affairs with respect to how candidates are faring.

Of the six (6) effects, the bandwagon effect has a particular resonance and has been of concern. Surveys, or opinion polls, "by directly influencing
individual-level support . . . , can be self-fulfilling prophecies and produce opinion cascades."83 "[A] poll's prediction may come to pass not only because
it measures public opinion but also because it may influence public opinion." 84

The bandwagon effect is of particular concern because of the observed human tendency to conform. Three (3) mechanisms through which survey
results may induce conformity have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and accepted or believe they are on the winning
team;

(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof because they 'believe that others' interpretation of an
ambiguous situation is more accurate . . . and will help [them] choose an appropriate course of action'; and

(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the poll. 85cralawlawlibrary

Likewise, it has been argued that the bandwagon effect is but the obverse of the so-called false-consensus effect or false-consensus bias:

The bandwagon effect, a form of conformity, is the mirror image of the false consensus effect, where people misperceive that their own behaviors and
attitudes are more popular than they actually are. In the political domain, one mechanism underlying the false consensus effect is wishful thinking -
people gaining utility from thinking their candidate is ahead or their opinions are popular. 86

The bandwagon effect induced by election surveys assumes even greater significance in considering the health of a democracy.

Integral to our appreciation of democracy is the recognition that democracy is fundamentally deliberative. It is rooted in the exchange and dialogue of
ideas. Accordingly, free expression, not least of all from the minority and from those who do not conform, i.e., those who dissent and criticize, is
indispensable:

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue is a critical, and indeed defining,
feature of a good polity." This theory may be considered broad, but it definitely "includes [a] collective decision making with the participation of all who
will be affected by the decision." It anchors on the principle that the cornerstone of every democracy is that sovereignty resides in the people. To ensure
order in running the state's affairs, sovereign powers were delegated and individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may evolve to the right of the people to make government accountable.
Necessarily, this includes the right of the people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed
remedies."

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a full discussion of public affairs." This
court has, thus, adopted the principle that "debate on public issues should be uninhibited, robust, and wide open . . . [including even] unpleasantly sharp
attacks on government and public officials."87cralawlawlibrary

However, "conformity pressures can suppress minority opinion."88 The bandwagon effect conjures images of an impregnable majority, thereby tending to
push farther toward the peripheries those who are already marginalized. Worse, the bandwagon effect foments the illusion of a homogenous monolith
denying the very existence of those in the minority. This undermines the "normative conceptions of democracy" 89 substituting the democratic dialogue
with acquiescence to perceived or projected orthodoxy.

Surveys, far from being a passive "snapshot of many viewpoints held by a segment of the population at a given time," 90 can warp existing public opinion
and can mould public opinion. They are constitutive. Published election surveys offer valuable insight into public opinion not just because they represent
it but more so because they also tend to make it.

Appreciating this tendency to both entrench and marginalize is of acute relevance in the context of Philippine political reality. This is the same reality that
our policymakers, primarily the framers of the Constitution, have seen fit to address.

III

The constitutional dictum to "guarantee equal access to opportunities for public service"91 and (even more specifically and explicitly) to "prohibit political
dynasties"92 does not exist in a vacuum.

Politics in the Philippines has been criticized as "a lucrative means of self-aggrandizement."93 Ours is an exclusive system that perpetuates power and
provides sanctuary to those who have already secured their place. Traditional Filipino politics connotes elite families that, with the state, are "engaged in
a reciprocal relationship that constantly defines and redefines both." 94 As recounted by Alfred McCoy, this reciprocal relationship, typified by rent-seeking
(i.e., "taking advantage of their access to state privileges to expand proprietary wealth" 95), is a vicious cycle propagated for as long as the Philippines
has been a republic: "The emergence of the Republic as a weak postcolonial state augmented the power of rent-seeking political families — a
development that further weakened the state's own resources." 96

The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the adoption of the 1987 Constitution, saw the "celebritification" 97 of
political office. On the legislature and studying emerging contrasts in the composition of its two chambers — the Senate and the House of
Representatives — it has been noted:

The old political families, however are not as strong in the Senate as they are in the House. This could be read, if not as a total repudiation by voters of
family power, then at least as an attempt by them to tap other sources of national leadership. Celebrities and military and police officers have emerged
as alternatives to traditional politicians. It could be that these new men and women have captured the popular imagination or that they are more in tune
with the public pulse. But their emergence could very well be seen as an indication of the paucity of choices: Political parties, for one, have not
succeeded in proffering a wider range of options to an electorate weary of trapos. 98

This celebritification nurtures misleading notions of an enhanced or healthier democracy, one that opens avenues to a crop of political leaders not
belonging to oligarchic families. Viewed critically however, this is nothing more than a pipe dream. New elites now share the political stage with the old.
The tension between two contrary tendencies actually serves to preserve the status quo of elitism — an expanded elitism perhaps, but elitism no less.
To evoke a truism, "the more things change, the more they stay the same":

But the "celebritification" of the Senate can also be interpreted as the democratization of an exclusive body once reserved only for the very rich, the
politically experienced, and the intellectually brilliant. In a sense, the bar of entry has been lowered, and anyone with national renown can contest a seat
in a chamber once famous for sharp debates and polysyllabic peroration.

The main criterion for a Senate seat is now name recall. This is where celebrities have the edge even over older political families with bankable names. .
..

....

The diminishing clout of old families in the Senate—and their continued dominance in the House—shows the push and pull of two contrary tendencies.
The first tendency is toward the new: The importance of name recall in national elections taking place in a media-inundated environment makes it easier
for movie and media personalities, and harder for old-style politicians, to be elected. The second tendency is veering toward the old: At the district level,
trapo-style patronage and machine politics remain deeply entrenched, giving political families the edge in elections."99

Thus, where once there was elitism solely along lines of kinship — Alfred McCoy's so-called "anarchy of families" — now there is also elitism
demarcated by name recall, populist projection, and media exposure, arguably, an "anarchy of celebrities."

Certainly, it is not the business of this court to engage in its own determination of the wisdom of policy. Nevertheless, having to grapple with the tasks of
adjudication and interpretation, it has become necessary to bring to light the intent that underlies the disputed statutory provision, as well as the
constitutional regime and social context, in which this provision is situated.

To reiterate, the inclusion of published election surveys in a statute that regulates election propaganda and other means through which candidates may
shape voter preferences is itself telling of the recognition that published election surveys, too, may influence voter preferences. This inclusion is similarly
telling of a recognition that, left unregulated, election surveys can undermine the purposes of ensuring "fair" elections. These recognitions are embedded
in the Fair Election Act; they are not judicial constructs. In adjudicating with these' as bases, this court is merely adhering to the legislative imperative.

IV

It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for ensuring equality. The Fair Election Act is a means to effect the
"necessary condition" to a genuine democratic dialogue, to realizing a deliberative democracy. The concept of this "necessary condition" was previously
considered by this court in Diocese of Bacolod v. COMELEC:100

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as merely "protecting] the already established machinery of discrimination." In
his view, any improvement "in the normal course of events" within an unequal society, without subversion, only strengthens existing interests of those in
power and control.

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is selfi-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine one's own life: to be able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it is rather the individual as a human being who is
capable of being free with the others. And the problem of making possible such a harmony between every individual liberty and the other is not that of
finding a compromise between competitors, or between freedom and law, between general and individual interest, common and private welfare in an
established society, but of creating the society in which man is no longer enslaved by institutions which vitiate self-determination from the beginning. In
other words, freedom is still to be created even for the freest of the existing societies.

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people — "implies a necessary condition,
namely, that the people must be capable of deliberating and choosing on the basis of knowledge, that they must have access to authentic information,
and that, on this basis, their evaluation must be the result of autonomous thought'." He submits that "[different opinions and 'philosophies' can no longer
compete peacefully for adherence and persuasion on rational grounds: the 'marketplace of ideas' is organized and delimited by those who determine the
national and the individual interest."

A slant toward left manifests from his belief that "there is a 'natural right' of resistance for oppressed and overpowered minorities to use extralegal means
if the legal ones have proved to be inadequate." Marcuse, thus, stands for an equality that breaks away and transcends from established hierarchies,
power structures, and indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance." 101

What is involved here is petitioners' freedom of speech and of expression, that is, to publish their findings. More specifically, what is involved here is their
right to political speech, that which "refers to speech 'both intended and received as a contribution to public deliberation about some issue,' 'foster[ing]
informed and civic-minded deliberation."102

The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality, calls into operation the equality-based
approach to weighing liberty to express vis-a-vis equality of opportunities. As explained in Diocese of Bacolod:103

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting political equality prevails over
speech." This view allows the government leeway to redistribute or equalize 'speaking power,' such as protecting, even implicitly subsidizing, unpopular
or dissenting voices often systematically subdued within society's ideological ladder. This view acknowledges that there are dominant political actors
who, through authority, power, resources, identity, or status, have capabilities that may drown out the messages of others. This is especially true in a
developing or emerging economy that is part of the majoritarian world like ours.

...
The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the cultural hegemony of the majority may have the effect
of drowning out the speech and the messages of those in the minority. In a sense, social inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have better access to media that reaches a wider audience than those who have less. Those who
espouse the more popular ideas will have better reception than the subversive and the dissenters of society. To be really heard and understood, the
marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This view, thus, restricts laws or
regulation that allows public officials to make judgments of the value of such viewpoint or message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some expression during electoral campaigns.104

The required judicial temperament in appraising speech in the context of electoral campaigns which is principally designed to endorse a candidate, both
by candidates and / or political parties, on the one hand, and private citizens, on the other, has thus been articulated:

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their political parties or their political
parties may be regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members of a political
party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the electorate including those that can
catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount to an election paraphernalia to be validly
regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who do not speak as
members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal object
the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably the least
restrictive means to achieve that object. The regulation must only be with respect to the time, place, and manner of the rendition of the message. In no
situation may the speech be prohibited or censored on the basis of its content. For this purpose, it will not matter whether the speech is made with or on
private property.105 [Emphasis in the original]

Concededly, what is involved here is not election propaganda per se. Election surveys, on their face, do not state or allude to preferred candidates. As a
means, election surveys are ambivalent. To an academician, they are an aggrupation of data. To a journalist, they are matters for reportage. To a
historian, they form part of a chronicle. Election surveys thus become unambiguous only when viewed in relation to the end for which they are employed.
To those whose end is to get a candidate elected, election surveys, when limited to their own private consumption, are a means to formulate
strategy. When published, however, the tendency to shape voter preferences comes into play. In this respect, published election surveys partake of the
nature of election propaganda. It is then declarative speech in the context of an electoral campaign properly subject to regulation. Hence, Section 5.2 of
the Fair Election Act's regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the names of subscribers to election surveys in light of the requisites for
valid regulation of declarative speech by private entities in the context of an election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of subscribers among those persons who "paid for the survey[.]" 106 Thus,
Resolution No. 9674 is a regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who "commissioned" and those who "paid for" the published survey
are separated by the disjunctive term "or."107 This disassociates those who "commissioned" from those who "paid for" and identifies them as alternatives
to each other.108 Section 5.2(a) thus requires the disclosure of two (2) classes of persons: "[first,] those who commissioned or sponsored the survey; and
[second,] those who paid for the survey."109

The second class makes no distinction between those who pay for a specific survey and those who pay for election surveys in general. Indeed,
subscribers do not escape the burden of paying for the component articles comprising a subscription. They may pay for them in aggregate, but they pay
for them just the same. From the text of Section 5.2(a), the legislative intent or regulatory concern is clear: "those who have financed, one way or
another, the [published] survey"110 must be disclosed.

Second, not only an important or substantial state interest but even a compelling one reasonably grounds Resolution No. 9674's inclusion of subscribers
to election surveys. Thus, regardless of whether an intermediate or a strict standard is used, Resolution No. 9674 passes scrutiny.

It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. We have held, for example, that "the welfare of children and the
State's mandate to protect and care for them, as parens patriae, constitute a substantial and compelling government interest in regulating . . . utterances
in TV broadcast."111

Here, we have established that the regulation of election surveys effects the constitutional policy, articulated in Article II, Section 26, and reiterated and
affirmed in Article IX-C, Section 4 and Article XIII, Section 26 of the 1987 Constitution, of "guarantee[ing] equal access to opportunities for public
service[.]"112

Resolution No. 9674 addresses the reality that an election survey is formative as it is descriptive. It can be a means to shape the preference of voters
and, thus, the outcome of elections. In the hands of those whose end is to get a candidate elected, it is a means for such end and partakes of the nature
of election propaganda. Accordingly, the imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression"113 and is "demonstrably the least restrictive means to achieve that object."114

While it does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far as to suppress desired expression. There is
neither prohibition nor censorship specifically aimed at election surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does
is articulate a regulation as regards the manner of publication, that is, that the disclosure of those who commissioned and/or paid for, including those
subscribed to, published election surveys must be made.cralawlawlibrary

VI

Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert that there is no room to entertain COMELEC's construction of
Section 5.2(a).115

It has been said that "[a] cardinal rule in statutory construction is that when the law is clear and free from any doubt or ambiguity, there is no room for
construction or interpretation. There is only room for application."116
Clarifications, however, are in order.

First, verba legis or the so-called plain-meaning rule applies only when the law is completely clear, such that there is absolutely no room for
interpretation. Its application is premised on a situation where the words of the legislature are clear that its intention, insofar as the facts of a case
demand from the point of view of a contemporary interpretative community, is neither vague nor ambiguous. This is a matter of judicial appreciation. It
cannot apply merely on a party's contention of supposed clarity and lack of room for interpretation.

This is descriptive of the situation here.

Interestingly, both COMELEC and petitioners appeal to what they (respectively) construe to be plainly evident from Section 5.2(a)'s text: on the part of
COMELEC, that the use of the words "paid for" evinces no distinction between direct purchasers and those who purchase via subscription schemes;
and, on the part of petitioners, that Section 5.2(a)'s desistance from actually using the word "subscriber" means that subscribers are beyond its
contemplation.117 The variance in the parties' positions, considering that they are both banking on what they claim to be the Fair Election Act's plain
meaning, is the best evidence of an extant ambiguity.

Second, statutory construction cannot lend itself to pedantic rigor that foments absurdity. The dangers of inordinate insistence on literal interpretation are
commonsensical and need not be belabored. These dangers are by no means endemic to legal interpretation. Even in everyday conversations,
misplaced literal interpretations are fodder for humor. A fixation on technical rules of grammar is no less innocuous. A pompously doctrinaire' approach
to text can stifle, rather than facilitate, the legislative wisdom that unbridled textualism purports to bolster. 118

Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality, universality and uniformity of meaning is a rarity. A
contrary belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider context and the interplay of the historical, the
contemporary, and even the envisioned. Judicial interpretation entails the convergence of social realities and social ideals. The latter are meant to be
effected by the legal apparatus, chief of which is the bedrock of the prevailing legal order: the Constitution. Indeed, the word in the vernacular that
describes the Constitution — saligan — demonstrates this imperative of constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an abstruse provision but a stipulation that is part of the
whole, i.e., the statute of which it is a part, that is aimed at realizing the ideal of fair elections. We consider not a cloistered provision but a norm that
should have a present authoritative effect to achieve the ideals of those who currently read, depend on, and demand fealty from the
Constitution.cralawlawlibrary

VII

We note with favor COMELEC's emphasis on the "wide latitude of discretion"119 granted to it in the performance of its constitutional duty to "[e]nforce and
administer all laws arid regulations relative to the conduct of an election[.]" 120 But this is with the caution that it does not reach "grave abuse of
discretion[.]121

Alliance for Nationalism and Democracy v. COMELEC122 had the following to say regarding factual findings made by COMELEC, an independent
constitutional organ:

[T]he rule that factual findings of administrative bodies will not be disturbed by courts of justice except when there is absolutely no evidence or no
substantial evidence in support of such findings should be applied with greater force when it concerns the COMELEC, as the framers of the Constitution
intended to place the COMELEC—created and explicitly made independent by the Constitution itself—on a level higher than statutory administrative
organs.123

Proceeding from this, we emphasize that this norm of deference applies not only to factual findings. This applies with equal force to independent
constitutional organs' general exercise of their functions. The constitutional placing of independent constitutional organs on a plane higher than those of
administrative agencies created only by statute is not restricted to competence in fact-finding. It extends to all purposes for which the Constitution
created them.

We reiterate, however, that our recognition of this deferential norm is made with caution. This rule of deference does not give independent constitutional
organs, like COMELEC, license to gravely abuse their discretion. With respect to rule-making, while the wisdom of "subordinate legislation" or the rule-
making power of agencies tasked with the administration of government is acknowledged, rule-making agencies are not given unfettered power to
promulgate rules. As explained in Gerochi v. Department of Energy,124it is imperative that subordinate legislation "be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in conformity with, the standards prescribed by the law."125A regulation that
purports to effect a statute but goes beyond the bounds of that statute is ultra vires; it is in excess of the rule-making agency's competence. Thus, it is
void and ineffectual.

This is not the case here. There is no grave abuse of discretion. Resolution No. 9674 serves a constitutional purpose and works well within the bounds
of the Constitution and of statute.cralawlawlibrary

VIII

Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:

Resolution No. 9674 makes it an election offense for a survey firm not to disclose the names of subscribers who have paid substantial amounts to them,
even if ihe survey portions provided to them have not been published. 1'his requirement is unduly burdensome and onerous and constitutes a prior
restraint on the right of survey firms to gather information on public opinion and disseminate it to the citizenry.

. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they will not have enough clients and will not be
financially sustainable. COMELEC will finally be able to do indirectly what it could not do directly, which is to prohibit the conduct of election surveys and
the publication or dissemination of the results to the public. 126

Petitioners' assertions are erroneous.

Chavez v. Gonzales127 explained the concept of prior restraint as follows:

Prior restraint 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. 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. 128 (Emphasis supplied, citations omitted)

The very definition of "prior restraint" negates petitioner's assertions. Resolution No. 9674 poses no prohibition or censorship specifically aimed at
election surveys. Apart from regulating the manner of publication, petitioners remain free to publish election surveys. COMELEC correctly points out that
"[t]he disclosure requirement kicks in only upon, not prior to, publication."129
In any case, the requirement of disclosing subscribers is neither unduly burdensome nor onerous. Prior to the promulgation of Resolution No. 9674,
survey firms were already understood to be bound by the requirement to disclose those who commissioned or paid for published election surveys.
Petitioners have been complying with this without incident since the Fair Election Act was enacted in 2001. After more than a decade of compliance, it is
odd for petitioners to suddenly assail the disclosure requirement as unduly burdensome or onerous.

Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they will not have enough
clients and will not be financially sustainable"130 is too speculative and conjectural to warrant our consideration. The assumption is that persons who
want to avail of election survey results will automatically be dissuaded from doing so when there is a requirement of submission of their names during
the campaign period. This is neither self-evident, nor a presumption that is susceptible to judicial notice. There is no evidence to establish a causal
connection.

Petitioners' free speech rights must be weighed in relation to the Fair Election Act's purpose of ensuring political equality and, therefore, the speech of
others who want to participate unencumbered in our political spaces. On one hand, there are petitioners' right to publish and publications which are
attended by the interests of those who can employ published data to their partisan ends. On the other, there is regulation that may effect equality and,
thus, strengthen the capacity of those on society's margins or those who grope for resources to engage in the democratic dialogue. The latter fosters the
ideals of deliberative democracy. It does not trump the former; rather, it provides the environment where the survey group's free speech rights should
reside.cralawlawlibrary

IX

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987 Constitution. 131They claim that it "unduly interferes with [their]
existing contracts . . . by forcing [them] to disclose information that, under the contracts, is confidential or privileged."132

For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution must yield to the loftier purposes sought to be achieved by the
government."133 It adds that "[petitioners' existing contracts with third parties must be understood to have been made in reference to the possible
exercise of the COMELEC's regulatory powers."134

It is settled that "the constitutional guaranty of non-impairment... is limited by the exercise of the police power of the State, in the interest of public health,
safety, morals and general welfare."135 "It is a basic rule in contracts that the law is deemed written into the contract between the parties." 136 The
incorporation of regulations into contracts is "a postulate of the police power of the State."137

The relation of the state's police power to the principle of non-impairment of contracts was thoroughly explained in Ortigas and Co. V. Feati Bank:138

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of
police power, i.e., "the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the
people." Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the greatest and most powerful attribute of
government," the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there
having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengzon
in Philippine Long Distance Company vs. City of Davao, et al. police power "is elastic and must be responsive to various social conditions; it is not
confined within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic way of life." We were
even more emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al, when We declared: "We do not see why public welfare when
clashing with the individual right to property should not be made to prevail through the state's exercise of its police power."139(Citations omitted)

This case does not involve a "capricious, whimsical, unjust or unreasonable" 140 regulation. We have demonstrated that not only an important or
substantial state interest, but even a compelling one anchors Resolution No. 9674's requirement of disclosing subscribers to election surveys. It effects
the constitutional policy of "guarantee[ing] equal access to opportunities for public service" 141 and is impelled by the imperative of "fair" elections.

As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly deemed written into petitioners' existing contracts.

Parenthetically, the obligations of agreements manifested in the concept of contracts are creations of law. This right to demand performance not only
involves its requisites, privileges, and regulation in the Civil Code or special laws, but is also subject to the Constitution. The expectations inherent in a
contract may be compelling, but so are the normative frameworks demanded by law and the provisions of the Constitution.cralawlawlibrary

Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and regulations promulgated by the COMELEC under and by authority
of this Section shall take effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation." In contrast,
Resolution No. 9674 provides that it "shall take effect immediately after publication."142 Thus, they assert that Resolution No. 9674's effectivity clause is
invalid. From this, they argue that Resolution No. 9674 has not taken effect and cannot be enforced against them or against other persons. 143

COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall take effect "on the seventh day after their publication" applies only
to Resolution No. 9615, the Implementing Rules and Regulations (IRR) of the Fair Election Act, and not to Resolution No. 9674, which "merely enforces
Section 26144 of Resolution No. 9615."145

Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily Inquirer and the Philippine Star both on April 25, 2013, COMELEC
adds that, in any case, "the lapse of the seven-day period from the date of its publication has rendered the instant issue moot and academic." 146

It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:

Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall promulgate and furnish all political parties and
candidates and the mass media entities the rules and regulations for the implementation of this Act, consistent with the criteria established in Article IX-
C, Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day after their publication in
at least two (2) daily newspapers of general circulation. Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or
against any candidate or political party shall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be an election offense punishable under the first
and second paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Bldg. 881). (Emphasis supplied)

Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic Act No. 9006, otherwise known as the 'Fair Election Act', in
connection to [sic] the 13 May 2013 National and Local Elections, and Subsequent Elections[.]"

The only conceivable reason that would lead COMELEC to the conclusion that it is only Resolution No. 9615 (and not the assailed Resolution No. 9674)
that needs to comply with the requirement of Section 13 of the Fair Election Act is Section 13's use of the phrase "rules and regulations for the
implementation of this Act[.]" That is, since Resolution No. 9615 is the Resolution which, by name, is called the "Rules and Regulations Implementing
Republic Act No. 9006," COMELEC seems to think that other rules named differently need not comply.

It is an error to insist on this literal reasoning.

Section 13 applies to all rules and regulations implementing the Fair Election Act, regardless of how they are denominated or called. COMELEC's further
reasoning that what Resolution No. 9674 intends to implement is Resolution No. 9615 and not the Fair Election Act itself is nothing but a circuitous
denial of Resolution No. 9674's true nature. COMELEC's reasoning is its own admission that the assailed Resolution supplements what the
Implementing Rules and Regulations of the Fair Election Act provides. Ultimately, Resolution No. 9674 also implements the Fair Election Act and must,
thus, comply with the requirements of its Section 13.

Accordingly, Resolution No. 9674 could not have become effective as soon as it was published in the Philippine Daily Inquirer and the Philippine Star on
April 25, 2013. Taking into consideration the seven-day period required by Section 13, the soonest that it could have come into effect was on May 2,
2013.

This notwithstanding, petitioners were not bound to comply with the requirement "to submit within three (3) days from receipt of this Resolution the
names of all commissioners and payors of surveys published from February 12, 2013 to the date of the promulgation of this Resolution[.]"147 As shall be
discussed, COMELEC's (continuing) failure to serve copies of Resolution No. 9674 on petitioners prevented this three-day period from even
commencing.cralawlawlibrary

XI

Petitioners point out that they were never served copies of Resolution No. 9674. Thus, they claim that this Resolution's self-stated three-day period
within which they must comply has not begun to run and that COMELEC's insistence on their compliance violates their right to due process. They add
that COMELEC has also failed to provide them with copies of the criminal complaint subject of E.O. Case No. 13-222 for which the Subpoena dated July
1, 2013 was issued against them.

COMELEC, however, insists that "[petitioners were given fair notice of the Resolution" 148 in that:

[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes reference to the Resolution by its number and title but also indicates
its date of promulgation, the two newspapers of general circulation in which it was published, it date of publication, and, more important [sic], reproduces
in full its dispositive portion[.]149

COMELEC adds that, in any case, petitioners were "able to secure a certified true copy of the [assailed] Resolution." 150 On the filing of a criminal
complaint, COMELEC asserts that attached to the Subpoena served on petitioners was a copy of Resolution No. 13-0739 of the COMELEC En Bane
which "provides a verbatim reproduction of the Memorandum of the Director of the Law Department detailing petitioners' failure to comply with the
assailed Resolution and of the Memorandum of Commissioner [Christian Robert S.] Lim submitting the matter for the appropriate action of the
COMELEC en bane."151

COMELEC relies on infirm reasoning and reveals how, in criminally charging petitioners, it acted arbitrarily, whimsically, and capriciously, and violated
petitioners' right to due process.

By its own reasoning, COMELEC admits that petitioners were never actually served copies of Resolution No. 9674 after it was promulgated on April 23,
2013. It insists, however, that this flaw has been remedied by service to petitioners of the May 8, 2013 Notice which reproduced Resolution No. 9674's
dispositive portion.

Dismembering an official issuance by producing only a portion of it (even if the reproduced portion is the most significant, i.e., dispositive, portion) is not
the same as serving on the concerned parties a copy of the official issuance itself. Petitioners may have been informed of what the dispositive portion
stated, but it remains that they were never notified and served copies of the assailed Resolution itself. In Resolution No. 9674's own words, compliance
was expected "within three (3) days from receipt of this Resolution[,]"152 not of its partial, dismembered, reproduction.

Not having been served with copies of Resolution No. 9674 itself, petitioners are right in construing the three-day period for compliance as not having
begun to run. From this, it follows that no violation of the requirement "to submit within three (3) days from receipt of this Resolution the names of all
commissioners and payors of surveys published from February 12, 2013 to the date of the promulgation of this Resolution[.]" 153 could have been
committed. Thus, there was no basis for considering petitioners to have committed an election offense arising from this alleged violation.

It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to comply with it "shall constitute an election offense punishable under
the first and second paragraphs of Section 264 of the Omnibus Election Code." 154 It is true that the Omnibus Election Code has been in force and effect
long before Resolution No. 9674 was promulgated; nevertheless, the supposed violation of the Omnibus Election Code rests on petitioners' alleged non-
compliance with Resolution No. 9674. This is a matter which, as we have demonstrated, is baseless, the three-day period for compliance not having
even commenced.

It is similarly inconsequential that petitioners were subsequently able to obtain certified true copies of Resolution No. 9674. Petitioners' own diligence in
complying with the formal requirements of Rule 65 petitions filed before this court cannot possibly be the cure for COMELEC's inaction. These certified
true copies were secured precisely to enable petitioners to assail COMELEC's actions, not to validate them. It would be misguided to subscribe to
COMELEC's suggestion that petitioners' diligence should be their own undoing. To accede to this would be to effectively intimidate parties with
legitimate grievances against government actions from taking the necessary steps to comply with (formal) requisites for judicial remedies and, ultimately,
prevent them from protecting their rights.

COMELEC's error is compounded by its failure to provide petitioners with copies of the criminal complaint subject of E.O. Case No. 13-222. COMELEC
has neither alleged nor proven that it has done so. Per its own allegations, all it did was serve petitioners with the May 8, 2013 Notice and the July 1,
2013 Subpoena.

These facts considered, it was not only grave error, but grave abuse of discretion, for COMELEC to pursue unfounded criminal charges against
petitioners. In so doing, COMELEC violated petitioners' right to due process.

WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution No. 9674 is upheld, and respondent Commission on Elections
is ENJOINED from prosecuting petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. for their supposed violation of COMELEC Resolution No.
9674 in respect of their non-submission of the names of all commissioners and payors, including subscribers, of surveys published during the campaign
period for the 2013 elections.

SO ORDERED.

USE OF PRIVATE PARY AS A FORUM FOR OTHER’S SPEECH

Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980)

Pruneyard Shopping Center v. Robins

No. 79-289

Argued March 18, 1980

Decided June 9, 1980

447 U.S. 74

APPEAL FROM THE SUPREME COURT OF CALIFORNIA

Syllabus

Soon after appellees had begun soliciting in appellant privately owned shopping center's central courtyard for signatures from passersby for petitions in
opposition to a United Nations resolution, a security guard informed appellees that they would have to leave because their activity violated shopping
center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center's commercial
purposes. Appellees immediately left the premises and later filed suit in a California state court to enjoin the shopping center and its owner (also an
appellant) from denying appellees access to the center for the purpose of circulating their petitions. The trial court held that appellees were not entitled
under either the Federal or California Constitution to exercise their asserted rights on the shopping center property, and the California Court of Appeal
affirmed. The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in
shopping centers even when the center is privately owned, and that such result does not infringe appellants' property rights protected by the Federal
Constitution.

Held:

1. This case is properly before this Court as an appeal under 28 U.S.C. § 1257(2). A state constitutional provision is a "statute" within the meaning of §
1257(2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court
rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected
property rights. Pp. 447 U. S. 79-80.

2. State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately
owned shopping center to which the public is invited, do not violate the shopping center owner's property rights under the Fifth and Fourteenth
Amendments or his free speech rights under the First and Fourteenth Amendments. Pp. 447 U. S. 88.

(a) The reasoning in Lloyd Corp. v. Tanner, 407 U. S. 551 -- which

Page 447 U. S. 75

held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills
unrelated to the center's operations -- does not ex proprio vigore limit a State's authority to exercise its police power or its sovereign right to adopt in its
own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power,
may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any
other federal constitutional provision. Pp. 447 U. S. 80-81.

(b) The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does
not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause of the Fifth Amendment, appellants having failed to
demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it
amounted to a "taking."Kaiser Aetna v. United States, 444 U. S. 164, distinguished. And there is no merit to appellants' argument that they have been
denied property without due process of law, where they have failed to show that the due process test whereby the challenged law must not be
unreasonable, arbitrary, or capricious and the means selected must have a real and substantial relation to the objective to be obtained, is not satisfied by
the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. Pp. 447 U. S. 82-
85.

(c) Nor have appellants' First Amendment rights been infringed by the California Supreme Court's decision. The shopping center, by choice of its owner,
is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a
petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants'
property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers. Wooley v. Maynard, 430 U. S.
705; West Virginia State Board of Education v. Barnette, 319 U. S. 624; and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, distinguished.
Pp. 447 U. S. 85-88.

23 Cal.3d 899, 592 P.2d 341, affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, MARSHALL, and STEVENS, JJ., joined; in
Parts I, II, III, and IV of which WHITE and POWELL, JJ., joined; and

Page 447 U. S. 76

in all but one sentence of which BLACKMUN, J., joined. MARSHALL, J., filed a concurring opinion, post, p. 447 U. S. 89. WHITE, J., filed an opinion
concurring in part and in the judgment, post, p. 447 U. S. 95. POWELL, J., filed an opinion concurring in part and in the judgment, in which WHITE, J.,
joined, post, p. 447 U. S. 96. BLACKMUN, J., filed a statement concurring in part, post, p. 447 U. S. 88.

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented.
Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately
owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth

Page 447 U. S. 77

and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments.

Appellant PruneYard is a privately owned shopping center in the City of Campbell, Cal. It covers approximately 21 acres -- 5 devoted to parking and 16
occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard
is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to
engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has
been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi.
Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against "Zionism." On a Saturday
afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions, which
were to be sent to the President and Members of Congress. Their activity was peaceful and orderly, and, so far as the record indicates, was not objected
to by PruneYard's patrons.

Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated
PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. Appellees immediately left the
premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access
to the PruneYard for the purpose of circulating their petitions.

The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise

Page 447 U. S. 78

their asserted rights on the shopping center property. App. to Juris.Statement A-2. It concluded that there were "adequate, effective channels of
communication for [appellees] other than soliciting on the private property of the [PruneYard]." Id. at A-3. The California Court of Appeal affirmed.

The California Supreme Court reversed, holding that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping
centers even when the centers are privately owned." 23 Cal.3d 899, 910, 592 P.2d 341, 347 (1979). It concluded that appellees were entitled to conduct
their activity on PruneYard property. In rejecting appellants' contention that such a result infringed property rights protected by the Federal Constitution,
the California Supreme Court observed:

"'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a
modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take
advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing
handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal
business operations (see Diamond [v. Bland, 3 Cal.3d 653, 665, 477 P.2d 733, 741 (1970)]) would not markedly dilute defendant's property rights.'
([Diamond v. Bland, 11 Cal.3d 331, 345, 521 P.2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)"

Id. at 910-911, 592 P.2d at 347-348. The California Supreme Court thus expressly overruled its earlier decision in Diamond v. Bland, 11 Cal.3d 331, 521
P.2d 460 (Diamond II), cert. denied, 419 U.S. 885 (1974), which had reached an opposite conclusion. 23 Cal.3d at

Page 447 U. S. 79

910, 592 P.2d at 347. [Footnote 1] Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to
exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial
reconstruction of a State's laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits.
444 U.S. 949. We now affirm.

II

We initially conclude that this case is properly before us as an appeal under 28 U.S.C. § 1257(2). It has long been established that a state constitutional
provision is a "statute" within the meaning of § 1257(2). See, e.g., Torcaso v. Watkins,367 U. S. 488, 367 U. S. 489 (1961); Adamson v. California, 332
U. S. 46, 332 U. S. 48, n. 2 (1947); Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 (1931). Here the California Supreme Court decided that Art.
1, §§ 2 and 3, of the California Constitution gave appellees the right to solicit signatures on appellants' property in exercising their state rights of free
expression and petition. [Footnote 2] In so doing, the California Supreme Court

Page 447 U. S. 80

rejected appellants' claim that recognition of such a right violated appellants' "right to exclude others," which is a fundamental component of their
federally protected property rights. Appeal is thus the proper method of review.

III

Appellants first contend that Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), prevents the State from requiring a private shopping center owner to provide
access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are
available. Lloyd dealt with the question whether, under the Federal Constitution, a privately owned shopping center may prohibit the distribution of
handbills on its property when the handbilling is unrelated to the shopping center's operations. Id. at 407 U. S. 552. The shopping center had adopted a
strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id. at 407 U. S. 555.
[Footnote 3] Respondents in Lloyd argued that, because the shopping center was open to the public, the First Amendment prevents the private owner
from enforcing the handbilling restriction on shopping center premises. Id. at 407 U. S. 564. [Footnote 4]

Page 447 U. S. 81

In rejecting this claim, we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U. S. 308 (198), which was later
overruled in Hudgens v. NLRB, 424 U. S. 507 (1976). We stated that property does not "lose its private character merely because the public is generally
invite to use it for designated purposes," and that " [t]he essentially private character of a store and its privately owned abutting property does not
change by virtue of being large or clustered with other stores in a modern shopping center." 407 U.S. at 407 U. S. 569.

Our reasoning in Lloyd, however, does not, ex proprio vigore, limit the authority of the State to exercise its police power or its sovereign right to adopt in
its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California, 386 U. S. 58, 386 U. S.
62 (1967). See also 407 U.S. at 407 U. S. 569-570. In Lloyd, supra,there was no state constitutional or statutory provision that had been construed to
create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well
established that a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not
amount to a taking without just compensation or contravene any other federal constitutional provision. See, e.g., Euclid v. Ambler Realty Co., 272 U. S.
365 (1926); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976).Lloyd held that, when a shopping center owner opens his private property to the
public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond
those already existing under applicable law. See also Hudgens v. NLRB, supra at 424 U. S. 517-521.

Page 447 U. S. 82

IV
Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation
and the Fourteenth Amendment guarantee against the deprivation of property without due process of law. [Footnote 5]

It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U. S. 164, 444
U. S. 179-10 (1979). And here there has literally been a "taking" of that right to the extent that the California Supreme Court has interpreted the State
constitution to entitle its citizens to exercise free expression and petition rights on shopping center property. [Footnote 6] But it is well established that
"not every destruction or injury to property by governmental action has been held to be a taking' in the constitutional sense." Armstrong v. United
States, 364 U. S. 40, 364 U. S. 48 (1960). Rather, the determination whether a state law unlawfully infringes a landowner's property in

Page 447 U. S. 83

violation of the Taking Clause requires an examination of whether the restriction on private property "forc[es] some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a whole." Id. at 364 U. S. 49. [Footnote 7] This examination entails inquiry into such
factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser
Aetna v. United States, supra, at 444 U. S. 175. When "regulation goes too far, it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260
U. S. 393, 260 U. S. 415 (1922).

Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property
clearly does not amount to an unconstitutional infringement of appellants' property right under the Taking Clause. There is nothing to suggest that
preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard
is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large.
The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner
regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the

Page 447 U. S. 84

common areas of the shopping center. In these circumstances, the fact that they may have "physically invaded" appellants' property cannot be viewed
as determinative.

This case is quite different from Kaiser Aetna v. United States, supra. Kaiser Aetna was a case in which the owners of a private pond had invested
substantial amounts of money in dredging the pond, developing it into an exclusive marina, and building a surrounding marina community. The marina
was open only to fee-paying members, and the fees were paid in part to "maintain the privacy and security of the pond." Id. at 444 U. S. 168. The
Federal Government sought to compel free public use of the private marina on the ground that the marina became subject to the federal navigational
servitude because the owners had dredged a channel connecting it to "navigable water."

The Government's attempt to create a public right of access to the improved pond interfered with Kaiser Aetna's "reasonable investment backed
expectations." We held that it went "so far beyond ordinary regulation or improvement for navigation as to amount to a taking. . . ." Id. at 444 U. S. 178.
Nor, as a general proposition, is the United States, as opposed to the several States, possessed of residual authority that enables it to define "property"
in the first instance. A State is, of course, bound by the Just Compensation Clause of the Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 226, 166 U. S. 233, 236-237 (1897), but here appellants have failed to demonstrate that the "right to exclude others" is so essential to the use or
economic value of their property that the state-authorized limitation of it amounted to a "taking."

There is also little merit to appellants' argument that they have been denied their property without due process of law. In Nebbia v. New York, 291 U. S.
502 (1934), this Court stated:

"[N]either property rights nor contract rights are absolute. . . . Equally fundamental with the private right

Page 447 U. S. 85

is that of the public to regulate it in the common interest. . . ."

"* * * *"

". . . [T]he guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the
means selected shall have a real and substantial relation to the objective sought to be attained."

Id. at 291 U. S. 523, 291 U. S. 525. See also Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949); Exxon Corp. v. Governor of
Maryland, 437 U. S. 117, 437 U. S. 124-125 (1978). Appellants have failed to provide sufficient justification for concluding that this test is not satisfied by
the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. [Footnote 8]

Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the
speech of others. [Footnote 9] They

Page 447 U. S. 86

state that, in Wooley v. Maynard, 430 U. S. 705 (1977), this Court concluded that a State may not constitutionally require an individual to participate in
the dissemination of an ideological

Page 447 U. S. 87

message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale
applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all.

Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee's personal property
that was used "as part of his daily life," and refused to permit him to take any measures to cover up the motto even though the Court found that the
display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping
center, by choice of its owner, is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come
and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be
identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants' property. There consequently is
no danger of governmental discrimination for or against a particular message. Finally, as far as appears here, appellants can expressly disavow any
connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any
sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law.

Appellants also argue that their First Amendment rights have been infringed in light of West Virginia State Board of

Page 447 U. S. 88

Education v. Barnette, 319 U. S. 624 (1943), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Barnette is inapposite, because it
involved the compelled recitation of a message containing an affirmation of belief. This Court held such compulsion unconstitutional because it
"require[d] the individual to communicate by word and sign his acceptance" of government-dictated political ideas, whether or not he subscribed to them.
319 U.S. at 319 U. S. 633. Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they
are free to publicly dissociate themselves from the views of the speakers or handbillers.

Tornillo struck down a Florida statute requiring a newspaper to publish a political candidate's reply to criticism previously published in that newspaper. It
rests on the principle that the State cannot tell a newspaper what it must print. The Florida statute contravened this principle in that it "exact[ed] a penalty
on the basis of the content of a newspaper." 418 U.S. at 418 U. S. 256. There also was a danger in Tornillo that the statute would "dampe[n] the vigor
and limi[t] the variety of public debate" by deterring editors from publishing controversial political statements that might trigger the application of the
statute. Id. at 447 U. S. 257. Thus, the statute was found to be an "intrusion into the function of editors." Id. at 447 U. S. 258. These concerns obviously
are not present here.

We conclude that neither appellants' federally recognized property rights nor their First Amendment right have been infringed by the California Supreme
Court's decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants' property. The judgment of the
Supreme Court of California is therefore

Affirmed.

UNPROTECTED SPEECH

OBSCENITY/PORNOGRAPY

G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES
AND TELEVISION (BRMPT), respondents.

Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.

The Solicitor General for respondents.

FERNANDO, C.J.:

In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the constitutional right to
freedom of expression 1 of an artist—and for that matter a man of letters too—as the basis for a ruling on the scope of the power of respondent Board of
Review for Motion Pictures and Television and how it should be exercised. The dispute between the parties has been narrowed down. The motion
picture in question, Kapit sa Patalim was classified "For Adults Only." There is the further issue then, also one of first impression, as to the proper test of
what constitutes obscenity in view of the objections raised. Thus the relevance of this constitutional command: "Arts and letters shall be under the
patronage of the State.2

The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a single proprietorship
with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its
Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.

In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification "For
Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the
classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on the
applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of
the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further
Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition.

This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as one of its special
and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one
immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions presented
above would be academic on the case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition
does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are the deletions
ordered in the film. 7 The prayer was for the dismissal of the petition.

An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For petitioners, such
classification "is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The film is an integral whole and all its
portions, including those to which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a whole, there is no basis
even for the vague speculations advanced by the Board as basis for its classification. 8 There was an answer to the amended petition filed on February
18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered by the Board as well as the statutory provisions for review
of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for
classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the sufficiency of the
standards remains the only question at issue.

It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board in the exercise
of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the classification of "For Adults Only."
This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary expression embraced in the
free speech and free press guarantees of the Constitution.
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effects on the
perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson9 is the "importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well
as to inform. 10There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a
diminution of the basic right to free expression. Our recent decision in Reyes v. Bagatsing11 cautions against such a move. Press freedom, as stated in
the opinion of the Court, "may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or
punishment. 12This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a
substantive evil that [the State] has a right to prevent. 13

2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is
however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other
important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. It
is, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case of United States v. Sedano,14 a prosecution for libel, the
Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous
license. There is reaffirmation of such a view in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due
course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud
speakers was considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court,
therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It can, to safeguard
other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to
adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is
not to be presumed, rather the presumption is against its validity.16

3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a substantive character
that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to
the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time
element cannot be ignored. Nor does it suffice if such danger be only probable. There is the require of its being well-nigh inevitable. The basic postulate,
wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are
concerned — included as they are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the
clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 17 There is
merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from
the censor. 18

4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United States 19 speaking of the free
speech and press guarantee of the United States Constitution: "All Ideas having even the slightest redeeming social importance — unorthodox Ideas,
controversial Ideas, even Ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they
encroach upon the limited area of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 20 Such a view
commends itself for approval.

5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: "The early leading
standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v.
Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the
average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The
Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating
with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard
provides safeguards adequate to withstand the charge of constitutional infirmity. 21

6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the freedom of artistic
expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided in 1918. While recognizing the principle that
libel is beyond the pale of constitutional protection, it left no doubt that in determining what constitutes such an offense, a court should ever be mindful
that no violation of the right to freedom of expression is allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v.
Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine.

7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and obscenity are not
synonymous. 24 Further: "Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art,
literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great
and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital
problems of human interest and public concern. 25

8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural values as
standard, 26 words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be
stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That is a constitutional mandate. It will be less than true to its
function if any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty
or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belleslettres deal primarily with
imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the
product of his talent rightfully may be considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is
to be given to the adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a man's personality. On the question of obscenity,
therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid any
taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is
"an elementary, a fundamental, and a universal role of construction, applied when considering constitutional questions, that when a law is susceptible of
two constructions' one of which will maintain and the other destroy it, the courts will always adopt the former. 31 As thus construed, there can be no valid
objection to the sufficiency of the controlling standard and its conformity to what the Constitution ordains.

9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of
discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For
Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes
then that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave.
Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: "The adult
classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the
scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least
nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the
picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the
young audience will misunderstand these scenes." 32 Further: "Respondents further stated in its answer that petitioner company has an option to have
the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film." 33 Petitioners,
however, refused the "For Adults Only" classification and instead, as noted at the outset, filed this suit for certiorari.

10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court
that where television is concerned: a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay
their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As
was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult
population. 34 it cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.

WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the ground that
there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as "For-Adults-Only."

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of Appeals, 1 rejecting his appeal from the
decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty against unreasonable searches
and seizures of the Constitution, as well as its prohibition against deprivation of property without due process of law. There is no controversy as to the
facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D. Bagatsing,
elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police
Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials believed to be obscene, pornographic and indecent and later burned the seized
materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers
and members of various student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction against Mayor
Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila, seeking to enjoin and/or restrain
said defendants and their agents from confiscating plaintiffs magazines or from otherwise preventing the sale or circulation thereof
claiming that the magazine is a decent, artistic and educational magazine which is not per se obscene, and that the publication is
protected by the Constitutional guarantees of freedom of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on December 14,1983 and
ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order. against indiscriminate seizure,
confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary injunction in view of
Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign. The Court granted the temporary restraining order on
December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the confiscation and burning of
obscence reading materials on December 1 and 3, 1983, but claimed that the said materials were voluntarily surrendered by the
vendors to the police authorities, and that the said confiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as
amended by P.D. No. 969, which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ of
preliminary injunction, defendant pointed out that in that anti- smut campaign conducted on December 1 and 3, 1983, the materials
confiscated belonged to the magazine stand owners and peddlers who voluntarily surrendered their reading materials, and that the
plaintiffs establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary injunction, raising the issue
as to "whether or not the defendants and/or their agents can without a court order confiscate or seize plaintiffs magazine before any
judicial finding is made on whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an urgent motion for
issuance of another restraining order, which was opposed by defendant on the ground that issuance of a second restraining order
would violate the Resolution of the Supreme Court dated January 11, 1983, providing for the Interim Rules Relative to the
Implementation of Batas Pambansa Blg. 129, which provides that a temporary restraining order shall be effective only for twenty
days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the issuance of a
writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for the parties to adduce
evidence on the question of whether the publication 'Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by the
defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a reply to defendants'
opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file a rejoinder within the same
period from receipt, after which the issue of Preliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff s supplemental
Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum" to defendants' Comment on January 25, 1984.
 On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary injunction, and
dismissing the case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or materials
deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV), and
the protection afforded by the constitution against unreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded,
however, that freedom of the press is not without restraint as the state has the right to protect society from pornographic literature
that is offensive to public morals, as indeed we have laws punishing the author, publishers and sellers of obscene publications (Sec.
I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, (People vs.
Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is
conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police officers could without
any court warrant or order seize and confiscate petitioner's magazines on the basis simply of their determination that they are
obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could dismiss the
case on its merits without any hearing thereon when what was submitted to it for resolution was merely the application of petitioner
for the writ of preliminary injunction.4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or what makes for an obscene or
pornographic literature. Early on, in People vs. Kottinger,5 the Court laid down the test, in determining the existence of obscenity, as follows: "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." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary and
common sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene or indecent must depend upon the
circumstances of the case, 8 and that ultimately, the question is to be decided by the "judgment of the aggregate sense of the community reached by
it." 9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grown increasingly complex over the
years. Precisely, the question is: When does a publication have a corrupting tendency, or when can it be said to be offensive to human sensibilities? And
obviously, it is to beg the question to say that a piece of literature has a corrupting influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical "community standard"
— whatever that is — and that the question must supposedly be judged from case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised Penal Code. Go Pin, was also
even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibit and art galleries for
the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the
pictures here in question were used not exactly for art's sake but rather for commercial purposes. In other words, the supposed
artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain
and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if
the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people
desirous of satisfying their morbid curiosity and taste, and lust, and for love for excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures. 11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier said than done to say,
indeed, that if "the pictures here in question were used not exactly for art's sake but rather for commercial purposes," 12 the pictures are not entitled to
any constitutional protection.

It was People v. Padan y Alova ,13 however, that introduced to Philippine jurisprudence the "redeeming" element that should accompany the work, to
save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude, which we have
condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there was involved the element of art;
that connoisseurs of the same, and painters and sculptors might find inspiration in the showing of pictures in the nude, or the human
body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated
obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting
a corrupting influence specially on the youth of the land. ...14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by "artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes," 15 could the same legitimately lay claim to
"art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters and sculptors might find inspiration,"16 in it,
would it cease to be a case of obscenity?

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and "two-cents worths" among
judges as to what is obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court, following trends in the United States, adopted the test: "Whether to the average
person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest." 18 Kalaw-
Katigbak represented a marked departure from Kottinger in the sense that it measured obscenity in terms of the "dominant theme" of the work, rather
than isolated passages, which were central to Kottinger (although both cases are agreed that "contemporary community standards" are the final arbiters
of what is "obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial question and as a consequence,
to temper the wide discretion Kottinger had given unto law enforcers.
It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which, states one
authoritative commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19

Memoirs v. Massachusettes,20 a 1966 decision, which characterized obscenity as one "utterly without any redeeming social value,"21 marked yet another
development.

The latest word, however, is Miller v. California,22 which expressly abandoned Massachusettes, and established "basic guidelines,"23 to wit: "(a) whether
'the average person, applying contemporary standards' would find the work, taken as a whole, appeals to the prurient interest . . .; (b) whether the work
depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value." 24

(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins v. Georgia, 26 yet another reiteration
of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of "genitals" portrayed on screen, although
the film highlighted contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctance of the courts to recognize the
constitutional dimension of the problem .27 Apparently, the courts have assumed that "obscenity" is not included in the guaranty of free speech, an
assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable
to society. And "[t]here is little likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so until the Court
recognizes that obscene speech is speech nonetheless, although it is subject — as in all speech — to regulation in the interests of [society as a whole]
— but not in the interest of a uniform vision of how human sexuality should be regarded and portrayed."28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut provided it is smut. For
obvious reasons, smut is not smut simply because one insists it is smut. So is it equally evident that individual tastes develop, adapt to wide-ranging
influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the
present generation. James Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literature today.29 Goya's La
Maja desnuda was once banned from public exhibition but now adorns the world's most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the divergent perceptions of men and
women that have probably compounded the problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, as it is far from being a settled
matter. We share Tribe's disappointment over the discouraging trend in American decisional law on obscenity as well as his pessimism on whether or
not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", if that is possible, as evolving
standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In free expression cases, this Court has
consistently been on the side of the exercise of the right, barring a "clear and present danger" that would warrant State interference and action.30 But, so
we asserted in Reyes v. Bagatsing,31"the burden to show the existence of grave and imminent danger that would justify adverse action ... lies on the. . .
authorit[ies]."32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger."33 "It is essential for the
validity of ... previous restraint or censorship that the ... authority does not rely solely on his own appraisal of what the public welfare, peace or safety
may require."34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test."35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-but rather as a serious attempt to
put the question in its proper perspective, that is, as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech may validly be said. The
burden is on the State to demonstrate the existence of a danger, a danger that must not only be: (1) clear but also, (2) present, to justify State action to
stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence
of a clear and present danger), it must come to terms with, and be held accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant confiscation of the literature for
which mandatory injunction had been sought below. First of all, they were not possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant.

The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to protect society from pornographic
literature that is offensive to public morals."36 Neither do we. But it brings us back to square one: were the "literature" so confiscated "pornographic"?
That we have laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No.
960 and P.D. No. 969),"37 is also fine, but the question, again, is: Has the petitioner been found guilty under the statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in disregard of due process.
In Philippine Service Exporters, Inc. v. Drilon,38 We defined police power as "state authority to enact legislation that may interfere with personal liberty or
property in order to promote the general welfare ."39 Presidential Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by
themselves, authorities for high-handed acts. They do not exempt our law enforcers, in carrying out the decree of the twin presidential issuances (Mr.
Marcos'), from the commandments of the Constitution, the right to due process of law and the right against unreasonable searches and seizures,
specifically. Significantly, the Decrees themselves lay down procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, prints, engravings, sculptures, paintings, or
other materials involved in the violation referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.
 (b) Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature, films, prints,
engravings, sculptures, paintings or other materials and articles involved in the violation referred to in Section 1 (referring to Art.
201) hereof shall nevertheless be forfeited in favor of the government to be destroyed, after forfeiture proceedings conducted by the
Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days after his receipt of a copy
of the decision, appeal the matter to the Secretary of National Defense for review. The decision of the Secretary of National Defense
shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I hereof, the penalty as provided
herein shall be imposed in the maximum period and, in addition, the accessory penalties provided for in the Revised Penal Code, as
amended, shall likewise be imposed .40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge.
In Burgos v. Chief of Staff, AFP, 43 We counter-minded the orders of the Regional Trial Court authorizing the search of the premises of We
Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here to reprobate the questioned raid,
in the complete absence of a warrant, valid or invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:

SEC. 12. Search without warrant of personarrested. — A person charged with an offense may be searched for dangerous weapons
or anything which may be used as proof of the commission of the offense. 44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed.
Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all criminal responsibility because
there had been no warrant," 45 and that "violation of penal law [must] be punished." 46 For starters, there is no "accused" here to speak of, who ought to
be "punished". Second, to say that the respondent Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a lawful
search warrant because, in his opinion, "violation of penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner
rolled into one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and present
danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a case-to-case basis
and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 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".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil
Code" 47 or the Revised Penal code .48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing, however, that the
magazines subject of the search and seizure ave been destroyed, the Court declines to grant affirmative relief. To that extent, the case is moot and
academic.

SO ORDERED.

G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners,

vs.
COURT OF APPEALS, respondent.

DECISION
QUISUMBING, J.:

This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals in
CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the Revised Penal Code, as amended by Presidential
Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the
fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and Detection Group
in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair
(Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation
of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of
Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself
as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes and ten (10) different magazines,
which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully, feloniously, publicly
and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this
City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women having sexual
intercourse[,] lewd photographs of nude men and women in explicating (sic) positions which acts serve no other purpose but to satisfy the
market for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4
Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented its evidence,
the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however
denied the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision. 5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond
reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY
as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the
crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid. 8
Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials. Fernando contends that
since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid
and that he was selling the said materials. Moreover, he contends that the appellate court’s reason for convicting him, on a presumption of continuing
ownership shown by an expired mayor’s permit, has no sufficient basis since the prosecution failed to prove his ownership of the establishment.
Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so. 9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner
Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana
as the store attendant, thus he was likewise liable. 10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the prosecution’s
evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved the
case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the
public from obscene, immoral and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or
literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials. 13 Necessarily, that the confiscated materials are
obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined obscenity as something
which is offensive to chastity, decency or delicacy. 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.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of men as an
indecency."16 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. 17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the Revised Penal Code,
laid the tests which did little to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by
people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for art’s sake but
rather for commercial purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of
art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their
exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so,
were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic
tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who
because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.20

People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One
can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing
but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary community standards"
of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant theme"
of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive
definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of
artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is;
or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene. 23 Go Pin and Padan y Alova gave too much latitude for
judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art. 24

The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually
failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop,
adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. 25 It seems futile at this point to formulate a perfect definition of
obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the
average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value. 26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is "patently offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials
unless these materials depict or describe patently offensive "hard core" sexual conduct. 28 Examples included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation,
excretory functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial determination and should be
treated on a case to case basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in ruling that the
confiscated materials are obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga, Penthouse,
Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art but
rather for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine exhibited
 indecent and immoral scenes and acts…The exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity,
indecency and an offense to public morals, inspiring…lust and lewdness, exerting a corrupting influence especially on the youth. (Citations
omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra
Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing
movements excited the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and shocking to
good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons interested in art to
satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid curiosity, taste and lust and for [love] of
excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and
perverting effects of the pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures
were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there
would be no offense committed (People vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently
unsupported by the evidence on record or the judgment itself is based on misapprehension of facts. 31 In this case, petitioners neither presented contrary
evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize 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.32The 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.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando. 33 The mayor’s permit
was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated August 8, 1996, shows that he is
the owner/operator of the store.35 While the mayor’s permit had already expired, it does not negate the fact that Fernando owned and operated the
establishment. It would be absurd to make his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful act.
Furthermore, when he preferred not to present contrary evidence, the things which he possessed were presumptively his. 36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police
Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was
served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the presumption of regularity in the performance of his duties.
Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of credibility of witnesses, absent any
palpable error or arbitrariness in their findings.38 In our view, no reversible error was committed by the appellate court as well as the trial court in finding
the herein petitioners guilty as charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the Decision of the
Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.

ELISEO F. SORIANO, G.R. No. 164785

Petitioner,

- versus - Present:
MA. CONSOLIZA P. LAGUARDIA, in her capacity as
Chairperson of the Movie and Television Review and
Classification Board, MOVIE AND TELEVISION REVIEW PUNO, C.J.,
AND CLASSIFICATION BOARD, JESSIE L. GALAPON,
ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, QUISUMBING,
JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. YNARES-SANTIAGO,
GAVINO,
CARPIO,
Respondents.
AUSTRIA-MARTINEZ,
x-------------------------------------------x
CORONA,
ELISEO F. SORIANO,
CARPIO MORALES,
Petitioner,
TINGA,
- versus -

MOVIE AND TELEVISION REVIEW AND CHICO-NAZARIO,

CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE
VELASCO, JR.,
AQUINO-GAVINO,NOEL R. DEL PRADO,
EMMANUEL BORLAZA, JOSE E. ROMERO IV, and
NACHURA,
FLORIMONDO C. ROUS, in their capacity as members of
the Hearing and Adjudication Committee of the MTRCB,
LEONARDO-DE CASTRO,
JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL
M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, in their capacity as complainants BRION,
before
PERALTA, and
the MTRCB,
BERSAMIN, JJ.
Respondents.

G.R. No. 165636

Promulgated:

April 29, 2009

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a

decision of the Movie and Television Review and Classification Board (MTRCB) in connection with certain utterances he made in his television

show, Ang Dating Daan.

Facts of the Case

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks:

Lehitimong anak ng demonyo; sinungaling;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito]
kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae
yan. Sobra ang kasinungalingan ng mga demonyong ito.[1] x x x

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L. Galapon and seven other

private respondents, all members of the Iglesia ni Cristo (INC), [2] against petitioner in connection with the above broadcast. Respondent Michael M.

Sandoval, who felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV program Ang Tamang

Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August

10, 2004 episode of Ang Dating Daan.[4]

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing

of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec.

3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.[5] The same

order also set the case for preliminary investigation.

The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and

two other members of the adjudication board recuse themselves from hearing the case.[6] Two days after, however, petitioner sought to withdraw[7] his

motion for reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition, [8] docketed as G.R. No. 164785, to nullify the

preventive suspension order thus issued.

On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his
utterances and thereby imposing on him a penalty of three (3) months suspension from his program, Ang Dating Daan.

Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby exonerated for
lack of evidence.

SO ORDERED.[9]

Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636.

In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In G.R. No. 164785, petitioner raises the following issues:

 THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004
AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

(A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE
SUSPENSION ORDERS;

(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

(C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;

(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]

In G.R. No. 165636, petitioner relies on the following grounds:

SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF
JURISDICTION x x x CONSIDERING THAT:

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE
OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT
PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH;

II

SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE
OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND

III

[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT
DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES
OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004
AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH[11]

G.R. No. 164785

We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability

had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision.
 It is petitioners threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid

inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension.

Petitioners contention is untenable.

Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial,

or a mix of the five, as may be conferred by the Constitution or by statute.[12] They have in fine only such powers or authority as are granted or

delegated, expressly or impliedly, by law.[13] And in determining whether an agency has certain powers, the inquiry should be from the law itself. But

once ascertained as existing, the authority given should be liberally construed. [14]

A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the

challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and

supervision.

Sec. 3 of PD 1986 pertinently provides the following:

Section 3. Powers and Functions.The BOARD shall have the following functions, powers and duties:

xxxx

c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in
the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of wrong or crime such as but not limited to:

xxxx

vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;

xxxx

(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution, sale, lease, exhibition,
and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures,
programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x
x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;

xxxx

k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of
this Act x x x. (Emphasis added.)

The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and functions expressly set forth in PD 1986,

more particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x

x exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs

and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by

television.
 Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and supervisory statutory mandate and its

investigatory and disciplinary authority subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or

discipline illusory.

Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an administrative investigation.[15] And

the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation,

to preventively suspend the person subject of the complaint.[16]

To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as

petitioner insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing

preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:

Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to prevent or stop
further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV
station x x x provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the
date of issuance.

But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic

disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television

programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to

prevent further violations as it investigates. Contrary to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended

the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The

preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCBs duty of regulating or supervising

television programs, pending a determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004

IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.

Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs assailed action. Petitioners restrictive

reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and

rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate,

provides, To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x

x. Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers

are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act. [17] As we held in Angara v.

Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the

performance of the other is also conferred by necessary implication.[18] Clearly, the power to impose preventive suspension pending investigation is one

of the implied or inherent powers of MTRCB.

We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures

and publicity materials. The scope of the MTRCBs authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as

much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive

measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective

should it be subject to the restrictions petitioner envisages.

 Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the

MTRCB handed out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents

complaint. No less than petitioner admitted that the order was issued after the adjournment of the hearing,[19] proving that he had already appeared

before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency of the case. In

this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD 1986 [20] and of administrative complaints that

had been filed against him for such violation.[21]

At any event, that preventive suspension can validly be meted out even without a hearing.[22]

Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension

order, he was unable to answer the criticisms coming from the INC ministers.

Petitioners position does not persuade. The equal protection clause demands that all persons subject to legislation should be treated alike,

under like circumstances and conditions both in the privileges conferred and liabilities imposed. [23] It guards against undue favor and individual privilege

as well as hostile discrimination.[24] Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one,

are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language

similar to that which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the preventive suspension order is that

petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. The

Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang

Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of

oppressive inequality.

Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like putang

babae were said in exercise of his religious freedom.

The argument has no merit.

The Court is at a loss to understand how petitioners utterances in question can come within the pale of Sec. 5, Article III of the 1987

Constitution on religious freedom. The section reads as follows:

No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.

There is nothing in petitioners statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed

evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the

character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech. Even

petitioners attempts to place his words in context show that he was moved by anger and the need to seek retribution, not by any religious conviction. His

claim, assuming its veracity, that some INC ministers distorted his statements respecting amounts Ang Dating Daanowed to a TV station does not

convert the foul language used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and

religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that
petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to contradict and disprove his

detractors, but opted for the low road.

Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive suspension order, being, as insisted, an

unconstitutional abridgement of the freedom of speech and expression and an impermissible prior restraint. The main issue tendered respecting the

adverted violation and the arguments holding such issue dovetails with those challenging the three-month suspension imposed under the assailed

September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.

G.R. No. 165636

Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the

decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which

reads:

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 grievance.

He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons articulated in this petition.

We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and principles underlying the freedom of

speech and expression.

It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free

speech and expression clause.[25]Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to

present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of

protection.[26] Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of

cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are

anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of

actual publication or dissemination.[27] The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It

may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the

freedom of expression are reached when the expression touches upon matters of essentially private concern. [28] In the oft-quoted expression of Justice

Holmes, the constitutional guarantee obviously was not intended to give immunity for every possible use of language. [29] From Lucas v. Royo comes this

line: [T]he freedom to express ones sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any

sentiments must be expressed within the proper forum and with proper regard for the rights of others. [30]

Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-defined and narrowly limited classes of speech that are

harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems. In net effect, some forms of speech are

not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of speech

clause.[32] A speech would fall under the unprotected type if the utterances involved are no essential part of any exposition of ideas, and are of such

slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and
morality.[33] Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger

rule or the balancing-of-interest test, they being essentially modes of weighing competing values, [34] or, with like effect, determining which of the clashing

interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous

statements, obscenity or pornography, false or misleading advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury

or tend to incite an immediate breach of peace and expression endangering national security.

The Court finds that petitioners statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context,

unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases,

but nonetheless stated the ensuing observations on the matter:

There is no perfect definition of obscenity but the latest word is that of Miller v. California which established basic
guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole,
appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific
value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining
what is patently offensive. x x x What remains clear is that obscenity is an issue proper for judicial determination and should be
treated on a case to case basis and on the judges sound discretion.[35]

Following the contextual lessons of the cited case of Miller v. California,[36] a patently offensive utterance would come within the pale of the

term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards.

A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances Gago ka talaga

x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di

ba! may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they

were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV

program that is rated G or for general viewership, and in a time slot that would likely reach even the eyes and ears of children.

While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same

discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable

young minds. The term putang babae means a female prostitute, a term wholly inappropriate for children, who could look it up in a dictionary and just get

the literal meaning, missing the context within which it was used. Petitioner further used the terms, ang gumagana lang doon yung ibaba, making

reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth

in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in

context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the

meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they

take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the

opportunity to hear petitioners words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the

average adult. The average child may not have the adults grasp of figures of speech, and may lack the understanding that language may be colorful,
and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as

such. In this sense, we find petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech.

Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the

constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said

utterances are to be treated as unprotected speech.

No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances

conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech

communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications

Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited inEastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v.

Gonzales,[39] is a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the

category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent

speech may validly be categorized as unprotected, ergo, susceptible to restriction.

In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio

station owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the

language used as patently offensive and indecentunder a prohibiting law, though not necessarily obscene. FCC added, however, that its declaratory

order was issued in a special factual context, referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting

on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of

the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened

to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCCs

content-based regulatory action under scrutiny.

The Court in Chavez[41] elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is

content-neutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the

time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of

the expression. Courts subject content-based restraint to strict scrutiny.

With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this

disposition against the backdrop of the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to

borrow from Gonzales v. Kalaw Katigbak,[42]easily reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers

of the programs therein shown; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the

audience; and third, petitioner uttered his speech on a G or for general patronage rated program.Under Sec. 2(A) of Chapter IV of the IRR of the

MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the material for television x x x in the judgment of the BOARD, does not

contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words petitioner used were, by any

civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in petitioners utterances on a general-patronage rated

TV program, it may be readily proscribed as unprotected speech.

A view has been advanced that unprotected speech refers only to pornography, [43] false or misleading advertisement,[44] advocacy of imminent lawless

action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in
stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general

exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet

another exception, another instance of unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected speech,

petitioners utterances can be subjected to restraint or regulation.

Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present

danger of bringing about a substantive evil the State has a right and duty to prevent and such danger must be grave and imminent.[45]

Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the

application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the

printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of

bringing about a substantial evil which the government has the power to prohibit.[46] Under the doctrine, freedom of speech and of press is susceptible of

restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were,

said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government. [47] It was originally designed to

determine the latitude which should be given to speech that espouses anti-government action, or to have serious and substantial deleterious

consequences on the security and public order of the community. [48] The clear and present danger rule has been applied to this jurisdiction.[49] As a

standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and

does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from

liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster. [50] As we observed in Eastern Broadcasting Corporation, the

clear and present danger test does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.[51]

To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases

involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in

terms of proximity and degree the Court, however, in several casesAyer Productions v. Capulong[52] and Gonzales v. COMELEC,[53] applied the

balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the

legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech

and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation,[54] then the balancing of

interests test can be applied.

The Court explained also in Gonzales v. COMELEC the balancing of interests test:

When particular conduct is regulated in the interest of public order, and 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. x x x We must, therefore, undertake the delicate and difficult task x x x
to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free
enjoyment of rights x x x.

In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for
ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the balancing-
of-interests test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the balancing
test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or
type of situation.

xxxx

Although the urgency of the public interest sought to be secured by Congressional power restricting the individuals freedom,
and the social importance and value of the freedom so restricted, are to be judged in the concrete, not on the basis of
 abstractions, a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are
(a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific
thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the
value and importance of the public interest sought to be secured by the legislationthe reference here is to the nature and
gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably
appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public
interest involved may be achieved by some other measure less restrictive of the protected freedom.[55]

This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory that it is the courts function in a case before it when it finds public

interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive

at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature

that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that

constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent

to serve appropriate and important interests.[57] To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow.

In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In

this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote

the development and welfare of the youth.

After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the

governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid

restraint on petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.

No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of

such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the

youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also

mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.

The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or

improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission,

explained that the State shall extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may

foster racial, religious or other forms of discrimination.[58]

Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which

may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their childrens minds from exposure

to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the

physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of nation-building.[59] In the same

way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character.[60]

Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could

have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the States mandate to protect and care

for them, as parens patriae,[61] constitute a substantial and compelling government interest in regulating petitioners utterances in TV broadcast as

provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of

being corrupted or prejudiced by offensive language, thus:

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written message, [Fuck the Draft],
might have been incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs vocabulary in an
instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its
source.Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the governments interest in the well-being of its youth and in supporting parents
claim to authority in their own household justified the regulation of otherwise protected expression. The ease with which children
may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of
indecent broadcasting.

Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young:

x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so
because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a
set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of
Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot
be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. [62]

The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To

reiterate, FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to

children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating Daan program. And

in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio
conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an
occasional expletive in either setting would justify any sanction. x x x The [FFCs] decision rested entirely on a nuisance rationale
under which context is all important. The concept requires consideration of a host of variables. The time of day was emphasized by
the [FFC]. The content of the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice
Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.We
simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on
proof that the pig is obscene. (Citation omitted.)

There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the

kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has

the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent,

insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public

interest would be served if the pig is reasonably restrained or even removed from the parlor.

Ergo, petitioners offensive and indecent language can be subjected to prior restraint.

Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit

indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his

offensive and obscene language in Ang Dating Daan.

To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The

exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who

must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and

Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can

classify movies and television programs and can cancel permits for exhibition of films or television broadcast.

The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld in Iglesia Ni

Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:

We thus reject petitioners postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast
on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and
ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring
about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the
more overriding interest of public health, public morals, or public welfare. x x x

xxxx

While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:

The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid
its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character. [63]

Bernas adds:

Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of
either are fit for public consumption. It decides what movies are immoral, indecent, contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines or its people, and what tend to incite subversion, insurrection, rebellion or sedition, or
tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities, etc. Moreover, its
decisions are executory unless stopped by a court.[64]

Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of review and prior approval of MTRCB extends to all

television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the

MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is

subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became a necessary evil with

the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise,

chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each others signals. In this scheme, station

owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and

impliedly agreed that said right may be subject to prior restraintdenial of permit or subsequent punishment, like suspension or cancellation of permit,

among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a

permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or

subsequent punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating

Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is

separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the

aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in

profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioners

exercise of his freedom of speech via television, but for the indecent contents of his utterances in a G rated TV program.

More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as

television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.

Neither can petitioners virtual inability to speak in his program during the period of suspension be plausibly treated as prior restraint on future

speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is

definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply

part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the

suspension sought to penalize past speech made on prime-time G rated TV program; it does not bar future speech of petitioner in other television

programs; it is a permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech. While not on all fours, the

Court, in MTRCB,[66] sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board

authorization in violation of Sec. 7 of PD 1986.

Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time

television broadcast of indecent or obscene speech in a G rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the

freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The MTRCB, as a

regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere

fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the

regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient

punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioners television program is justified, and does not

constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times.

Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating the MTRCB, arguing that PD 1986, as applied

to him, infringes also upon his freedom of religion. The Court has earlier adequately explained why petitioners undue reliance on the religious freedom

cannot lend justification, let alone an exempting dimension to his licentious utterances in his program. The Court sees no need to address anew the

repetitive arguments on religious freedom. As earlier discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way a

religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate defense of his religion fails miserably. He tries to place

his words in perspective, arguing evidently as an afterthought that this was his method of refuting the alleged distortion of his statements by the INC

hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word simply came out as profane language, without any

warning or guidance for undiscerning ears.

As to petitioners other argument about having been denied due process and equal protection of the law, suffice it to state that we have at length

debunked similar arguments in G.R. No. 164785. There is no need to further delve into the fact that petitioner was afforded due process when he

attended the hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties

that may be applied with respect to violations of the provisions of the law.

The argument is without merit.

In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise:

It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its
legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs
participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal
them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To
determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and
definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who
is to do it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which the legislative
process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily
involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its
execution to be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution is thus not
to be regarded as denying the legislature the necessary resources of flexibility and practicability.

To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to
repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative
purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations.[67]

Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation about undue delegation of legislative

power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in

promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law.

Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition

of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment

of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast

of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be

exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to exercise such powers and

functions as may be necessary or incidental to the attainment of the purpose and objectives of [the law]. As earlier explained, the investiture of

supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the

regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:

x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of
the one or the performance of the other is also conferred. x x x [W]hen the statute does not specify the particular method to be
followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt
any reasonable method to carry out its function.[68]
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it

or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say

that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend?

The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power [to] promulgate

such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x x.

And Chapter XIII, Sec. 1 of the IRR providing:

Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of the
appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986
and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional
materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the
imposition of fines and other administrative penalty/penalties.The Board recognizes the existing Table of Administrative Penalties
attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table
of Administrative Penalties shall be enforced. (Emphasis added.)

This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what

petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative

legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public.

In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there

have been statutory breaches.The MTRCB may evaluate motion pictures, television programs, and publicity materials applying contemporary Filipino

cultural values as standard, and, from there, determine whether these audio and video materials are objectionable for being immoral, indecent, contrary

to law and/or good customs, [etc.] x x x and apply the sanctions it deems proper.The lawmaking body cannot possibly provide for all the details in the

enforcement of a particular statute.[69] The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of

powers and is an exception to the non-delegation of legislative powers.[70] Administrative regulations or subordinate legislation calculated to promote the

public interest are necessary because of the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the

increased difficulty of administering the law.[71] Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory

disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of

the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently

regulate the movie and television industry.

But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner

must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective

January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The

MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television

personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only

persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decrees penal or

disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom

the penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued

pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the

offensive and obscene language, which sanction is what the law and the facts obtaining call for.

In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioners

flawed belief that he may simply utter gutter profanity on television without adverse consequences, under the guise of free speech, does not lend itself to

acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say any act that restrains speech should
be greeted with furrowed brows is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the

importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby AFFIRMED with

the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:

WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS
SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.

Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby exonerated for
lack of evidence.

Costs against petitioner.

SO ORDERED.

ELISEO F. SORIANO, G.R. No. 164785

Petitioner,
- versus - Present:

MA. CONSOLIZA P. LAGUARDIA, in her capacity as Present:

Chairperson of the Movie and Television Review and
Classification Board, MOVIE AND TELEVISION REVIEW PUNO, C.J.,
AND CLASSIFICATION BOARD, JESSIE L. GALAPON, CARPIO,
ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, CORONA,
JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. CARPIO MORALES,
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. VELASCO, JR.,
GAVINO, NACHURA,
Respondents. LEONARDO-DE CASTRO,
x-------------------------------------------x BRION,
PERALTA,
ELISEO F. SORIANO, BERSAMIN,
Petitioner, DEL CASTILLO,
ABAD,
- versus - VILLARAMA, JR.,
PEREZ, and
MOVIE AND TELEVISION REVIEW AND MENDOZA, JJ.
CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE
AQUINO-GAVINO,NOEL R. DEL PRADO,
EMMANUEL BORLAZA, JOSE E. ROMERO IV, and G.R. No. 165636
FLORIMONDO C. ROUS, in their capacity as members of
the Hearing and Adjudication Committee of the MTRCB,
JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL
M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO,
BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and
ROLDAN A. GAVINO, in their capacity as complainants
before
the MTRCB,
Respondents.

Promulgated:

March 15, 2010

x-----------------------------------------------------------------------------------------x

RESOLUTION
VELASCO, JR., J.:
 Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of the Court dated April 29, 2009, modifying that of

the Movie and Television Review and Classification Board (MTRCB) by imposing the penalty of three-month suspension on the television

show Ang Dating Daan, instead of on petitioner Soriano, as host of that program.

Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus meted out to the program constitutes prior

restraint; (2) the Court erred in ruling that his utterances [1] did not constitute exercise of religion; (3) the Court erred in finding the language used as

offensive and obscene; (4) the Court should have applied its policy of non-interference in cases of conflict between religious groups; and (5) the Court

erred in penalizing the television program for the acts of petitioner.

The motion has no merit.

Petitioners threshold posture that the suspension thus imposed constitutes prior restraint and an abridgement of his exercise of religion and

freedom of expression is a mere rehash of the position he articulated in the underlying petitions for certiorari and expounded in his memorandum.[2] So

are the supportive arguments and some of the citations of decisional law, Philippine and American, holding it together. They have been considered,

sufficiently discussed in some detail, and found to be without merit in our Decision. It would, thus, make little sense to embark on another lengthy

discussion of the same issues and arguments.

Suffice it to reiterate that the sanction imposed on the TV program in question does not, under the factual milieu of the case, constitute prior

restraint, but partakes of the nature of subsequent punishment for past violation committed by petitioner in the course of the broadcast of the program on

August 10, 2004. To be sure, petitioner has not contested the fact of his having made statements on the air that were contextually violative of the

programs G rating. To merit a G rating, the program must be suitable for all ages, which, in turn, means that the material for television [does not], in the

judgment of the [MTRCB], x x x contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision.[3] As

previously discussed by the Court, the vulgar language petitioner used on prime-time television can in no way be characterized as suitable for all ages,

and is wholly inappropriate for children.

Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of his religious beliefs and profession, as presiding

minister of his flock, over the right and duty of the state as parens patriae. Petitioners position may be accorded some cogency, but for the fact that it fails

to consider that the medium he used to make his statements was a television broadcast, which is accessible to children of virtually all ages. As already

laid down in the Decision subject of this recourse, the interest of the government in protecting children who may be subjected to petitioners invectives

must take precedence over his desire to air publicly his dirty laundry. The public soapbox that is television must be guarded by the state, which purpose

the MTRCB serves, and has served, in suspending Ang Dating Daan for petitioners statements. As emphasized in Gonzalez v. Kalaw Katigbak,[4] the

freedom of broadcast media is, in terms of degree of protection it deserves, lesser in scope, especially as regards television, which reaches every home

where there is a set, and where children will likely be among the avid viewers of the programs shown. The same case also laid the basis for the

classification system of the MTRCB when it stated, It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of

caring for the welfare of the young.[5]

The penalty of suspension imposed on petitioner has driven him to liken the Court to a blind man who was asked to describe an elephant, and

by his description he stubbornly believed that an elephant is just the same as a Meralco post after touching one if its legs.[6] Petitioner makes this

comparison with the view that the factual backdrop against which his statements were made was purportedly not considered by the Court. As he

presently argues:

The Honorable Court should have rendered its decision in light of the surrounding circumstances why and what prompted
herein petitioner to utter those words. Clearly, he was provoked because of the malicious and blatant splicing by the INC ministers
of his recorded voice. Verily, Petitioner submits that the choice of words he used has been harsh but strongly maintains that the
same was consistent with his constitutional right of freedom of speech and religion.

Contrary to petitioners impression, the Court has, in fact, considered the factual antecedents of and his motive in making his utterances, and

has found those circumstances wanting as defense for violating the programs G rating. Consider the following excerpts from the Courts Decision:

There is nothing in petitioners statements subject of the complaints expressing any particular religious belief, nothing
furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program
 does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person
cannot be elevated to the status of religious speech. Even petitioners attempts to place his words in context show that he was
moved by anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some INC
ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does not convert the foul language
used in retaliation as religious speech. We cannot accept that petitioner made his statements in defense of his reputation and
religion, as they constitute no intelligible defense or refutation of the alleged lies being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.

And just to set things straight, the penalty imposed is on the program, not on petitioner.

Petitioner would next have the Court adopt a hands-off approach to the conflict between him and the Iglesia Ni Cristo. In support of his urging,

he cites Iglesia ni Cristo v. Court of Appeals.[7]

Petitioners invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous. Obviously, he fails to appreciate what the Court stated in

that particular case when it rejected the argument that a religious program is beyond MTRCBs review and regulatory authority. We reproduce what the

Court pertinently wrote in Iglesia ni Cristo:

We thus reject petitioners postulate that its religious program is per se beyond review by the respondent [MTRCB]. Its
public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even
the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the
State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e.
serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the
exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and
continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars
fought by men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this stultifying
strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs.
x x x For when religion divides and its exercise destroys, the State should not stand still.[8] (Emphasis added.)

Lastly, petitioner claims that there was violation of due process of law, alleging that the registered producer of the program is not a party to the

proceedings. Hence, the program cannot, so petitioner asserts, be penalized.

We will let the records speak for themselves to refute that argument.

As per petitioners admission in his petition for certiorari filed with the Court, he is the Executive Producer of Ang Dating Daan, a televised bible

exposition program produced by the Philippine-based religious organization, Church of God International.[9] It is unclear, then, which producer the movant

is referring to in claiming that there was no representation before the MTRCB. He was and is the representative of Ang Dating Daan, and the claim that

there was no due process of law is simply bereft of merit.

Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain relevant issues have been raised by some members

of the Court that ought to be addressed if only to put things in their proper perspective. We refer to the matter of obscenity.

As stressed at every possible turn in the challenged Courts Decision, the defining standards to be employed in judging the harmful effects of

the statements petitioner used would be those for the average child, not those for the average adult. We note that the ratings and regulation of television

broadcasts take into account the protection of the child, and it is from the childs narrow viewpoint that the utterances must be considered, if not

measured. The ratings G, PG (parental guidance), PG-13, and R (restricted or for adults only) suggest as much. The concern was then, as now, that the

program petitioner hosted and produced would reach an unintended audience, the average child, and so it is how this audience would view his words that

matters. The average child would not be concerned with colorful speech, but, instead, focus on the literal, everyday meaning of words used. It was this

literal approach that rendered petitioners utterances obscene.

The Court has taken stock of Action for Childrens Television v. FCC,[10] but finds this U.S. case not to be of governing application to this

jurisdiction under the present state of things. The so-called safe harbor of 10:00 p.m. to 6:00 a.m., adverted to in Action for Childrens Television as the

time wherein broadcast of indecent material may be permitted, is believed inapplicable here. As it were, there is no legislative enactment or executive

issuance setting a similar period in the Philippines wherein indecent material may be broadcast. Rather than fix a period for allowing indecent

programming, what is used in this jurisdiction is the system of classification of television programs, which the petitioner violated. His program was rated

G, purported to be suitable for all ages. We cannot lose sight of the violation of his programs classification that carried with it the producers implied
assurance that the program did not contain anything unsuitable for children and minors. The hour at which it was broadcasted was of little moment in light

of the guarantee that the program was safe for childrens viewing.

The suspension of the program has not been arrived at lightly. Taking into account all the factors involved and the arguments pressed on the

Court, the suspension of the program is a sufficiently limited disciplinary action, both to address the violation and to serve as an object lesson for the

future. The likelihood is great that any disciplinary action imposed on petitioner would be met with an equally energetic defense as has been put up

here. The simple but stubborn fact is that there has been a violation of government regulations that have been put in place with a laudable purpose, and

this violation must accordingly be dealt with. We are not unmindful of the concerns on the restriction of freedoms that may occur in imposing sanctions

upon erring individuals and institutions, but it cannot be over-emphasized that the freedoms encased in the Bill of Rights are far from absolute. Each has

its own limits, responsibilities, and obligations. Everyone is expected to bear the burden implicit in the exercise of these freedoms. So it must be here.

WHEREFORE, petitioners motion for reconsideration is hereby DENIED.

No further pleadings shall be entertained in this case. Let entry of judgment be made in due course.

SO ORDERED.

AMERICAN JURISPRUDENCE

Ginzburg v. United States, 383 U.S. 463 (1966)

Ginzburg v. United States

No. 4

Argued December 7, 1965

Decided March 21, 1966

383 U.S. 463

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Petitioner Ginzburg and three corporations which he controlled were convicted of violating the federal obscenity statute, 18 U.S.C. § 1461, by mailing
three publications: an expensive hardcover magazine dealing with sex, a sexual newsletter, and a short book purporting to be a sexual autobiography.
The prosecution charged that these publications were obscene in the context of their production, sale, and attendant publicity. Besides testimony as to
the merit of the material, abundant evidence was introduced that each of the publications was originated or sold as stock in trade of the business of
pandering, i.e., the purveying of publications openly advertised to appeal to the customers' erotic interest. Mailing privileges were sought from places
with salaciously suggestive names; circulars for the magazine and newsletter stressed unrestricted expression of sex, and advertising of the book which
purported to be of medical and psychiatric interest, but whose distribution was not confined to a professional audience, dwelt on the book's sexual
imagery. In finding petitioners guilty, the trial judge applied the obscenity standards first enunciated in Roth v. United States, 354 U. S. 476, and the
Court of Appeals affirmed.

Held: Evidence that the petitioners deliberately represented the accused publications as erotically arousing and commercially exploited them as erotica
solely for the sake of prurient appeal amply supported the trial court's determination that the material was obscene under the standards of
the Roth case, supra. The mere fact of profit from the sale of the publication is not considered; but, in a close case, a showing of exploitation of interests
in titillation by pornography with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters
supports a determination that the material is obscene. Pp. 383 U. S. 470-476.

338 F.2d 12, affirmed.

Page 383 U. S. 464

MR. JUSTICE BRENNAN delivered the opinion of the Court.

A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania [Footnote 1] convicted petitioner Ginzburg and three
corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U.S.C. § 1461 (1964 ed.).
[Footnote 2] 224 F.Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications
challenged as obscene, or advertising telling how and where the publications might

Page 383 U. S. 465

be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F.2d 12. We granted certiorari, 380 U.S. 961. We affirm. Since petitioners do not
argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U. S. 476, [Footnote 3] the only
serious question is whether those standards were correctly applied. [Footnote 4]

In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the
determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale,
and publicity, and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may
include consideration of the setting in which the publications were presented as an aid to determining the question

Page 383 U. S. 466

of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. New York, post, p. 383 U. S. 502,
and as did the courts below, 224 F.Supp., at 134, 338 F.2d at 14-15, we view the publications against a background of commercial exploitation of erotica
solely for the sake of their prurient appeal. [Footnote 5] The record in that regard amply supports the decision of the trial judge that the mailing of all
three publications offended the statute. [Footnote 6]

The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter, and The Housewife's Handbook on
Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and
photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Vol. 1, No. 1, contains a prefatory "Letter from the Editors"
announcing its dedication to "keeping sex an art and preventing it from becoming a science." The remainder of the issue consists of digests of two

Page 383 U. S. 467

articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who
favors the broadest license in sexual relationships. As the trial judge noted,

"[w]hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants' own expert, it is entirely without
literary merit."

224 F.Supp. at 134. The Handbook purports to be a sexual autobiography detailing with complete candor the author's sexual experiences from age 3 to
age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws
regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the
book valuable, for example, as a marriage manual or as an aid to the sex education of their children.

Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as
stock in trade of the sordid business of pandering -- "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest
of their customers." [Footnote 7] EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court
found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on
the basis of salacious appeal; [Footnote 8] the facilities of the

Page 383 U. S. 468

post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the
postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over
5,500 copies of the Handbook were mailed.

The "leer of the sensualist" also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual
candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded as an unrestricted license
allowed by law in the expression of sex and sexual matters. [Footnote 9] The advertising for the

Page 383 U. S. 469

Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis.
Although he alludes to the book's informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book's sexual
imagery. The solicitation was indiscriminate, not limited to those, such as physicians or psychiatrists, who might independently discern the book's

Page 383 U. S. 470

therapeutic worth. [Footnote 10] Inserted in each advertisement was a slip labeled "GUARANTEE" and reading,

"Documentary Books, Inc. unconditionally guarantees full refund of the price of THE HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY if the
book fails to reach you because of U.S. Post Office censorship interference."

Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what
the purchaser was being asked to buy. [Footnote 11]

This evidence, in our view, was relevant in determining the ultimate question of obscenity, and, in the context of this record, serves to resolve all
ambiguity and doubt. The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them
as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the
potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by
such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance
claimed for material in the courtroom was, in the circumstances, pretense or reality -- whether it was the basis upon which it was traded in the
marketplace or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications,
that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression

Page 383 U. S. 471

of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.

A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that
only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other
articles were admittedly nonoffensive. But the trial judge found that
"[t]he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through
the inclusion of nonoffensive material."

224 F.Supp. at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS
was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive
treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to "the widespread
weakness for titillation by pornography." [Footnote 12] Petitioners' own expert agreed, correctly we think, that " [i]f the object [of a work] is material gain
for the creator through an appeal to the sexual curiosity and appetite," the work is pornographic. In other words, by animating sensual detail to give the
publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion.

A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication.
Before selling publication rights to petitioners, its author had

Page 383 U. S. 472

printed it privately; she sent circulars to persons whose names appeared on membership lists of medical and psychiatric associations, asserting its value
as an adjunct to therapy. Over 12,000 sales resulted from this solicitation, and a number of witnesses testified that they found the work useful in their
professional practice. The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral, environment.
Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on it supposed therapeutic or educational value; rather,
they deliberately emphasized the sexually provocative aspects of the work in order to catch the salaciously disposed. They proclaimed its obscenity, and
we cannot conclude that the court below erred in taking their own evaluation at its face value and declaring the book as a whole obscene despite the
other evidence. [Footnote 13]

The decision in United States v. Rebhuhn, 109 F.2d 512, is persuasive authority for our conclusion. [Footnote 14] That

Page 383 U. S. 473

was a prosecution under the predecessor to § 1461, brought in the context of pandering of publications assumed useful to scholars and members of
learned professions. The books involved were written by authors proved in many instances to have been men of scientific standing, as anthropologists
or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed that many of the books were entitled to the protection of the First
Amendment, and "could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they
were written. . . ." 109 F.2d at 514. But the evidence, as here, was that the defendants had not disseminated them for their "proper use, but . . . woefully
misused them, and it was that misuse which constituted the gravamen of the crime." Id. at 515. Speaking for the Court in affirming the conviction, Judge
Learned Hand said:

". . . [T]he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to
laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not
obscene per se. In several decisions, we have held that the statute does not in all circumstances forbid the dissemination of such publications. . . .
However, in the case at bar, the prosecution succeeded . . . when it showed that the defendants had indiscriminately flooded the mails with
advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean
that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for
these defendants exceeded any possible limit; the circulars were no more than appeals

Page 383 U. S. 474

to the salaciously disposed, and no [factfinder] could have failed to pierce the fragile screen, set up to cover that purpose."

109 F.2d at 514-515.

We perceive no threat to First Amendment guarantees in thus holding that, in close cases, evidence of pandering may be probative with respect to the
nature of the material in question, and thus satisfy the Roth test. [Footnote 15] No weight is ascribed to the fact that petitioners have profited from the
sale of publications which we have assumed, but do not hold, cannot themselves be adjudged obscene in the abstract; to sanction consideration of this
fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the
protection of expression secured by the First Amendment. [Footnote 16] Rather, the fact that each of these publications was created or exploited entirely
on the basis of its appeal to prurient interests [Footnote 17] strengthens the conclusion that the transactions

Page 383 U. S. 475

here were sales of illicit merchandise, not sales of constitutionally protected matter. [Footnote 18] A conviction for mailing obscene publications, but
explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper
use. Nor should it inhibit the enterprise of others seeking, through serious endeavor, to advance human knowledge or understanding in science,
literature, or art. All that will have been determined is that questionable publications are obscene in a context which brands them as obscene as that
term is defined in Roth -- a use inconsistent with any claim to the shelter of the First Amendment. [Footnote 19]

"The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which
they draw color and character. A wholly different result might be reached in a different setting."

Roth v. United States, 354 U.S. at 354 U. S. 495 (WARREN, C.J., concurring).

It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation
of interests in titillation by pornography is shown with respect to material lending itself to such exploitation

Page 383 U. S. 476

through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though, in
other contexts, the material would escape such condemnation.

Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court's memorandum opinion, Fed.Rules
Crim.Proc. 23. Even on the assumption that petitioners' objections are well taken, we perceive no error affecting their substantial rights.

Affirmed.
Roth v. United States, 354 U.S. 476 (1957)

Roth v. United States

No. 582

Argued April 22, 1957

Decided June 24, 1957*

354 U.S. 476

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy .
. . or other publication of an indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising,
are sustained. Pp. 354 U. S. 479-494.

2. In the Albert case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for
sale, or to advertise, material that is "obscene or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books
and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 354 U. S. 479-494.

3. Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal
Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 354 U. S. 481-485.

(a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 354 U. S.
482-483.

(b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes
desired by the people. P. 354 U. S. 484.

(c) All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate
of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but
implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 354 U. S. 484-485.

Page 354 U. S. 477

4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the
juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct,
or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U. S. 250. Pp. 354 U. S. 485-490.

(a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest -- i.e., material
having a tendency to excite lustful thoughts. P. 354 U. S. 487.

(b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a
manner appealing to prurient interest. Pp. 354 U. S. 487-488.

(c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying
contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488-489.

(d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 354 U. S. 489-490.

5. When applied according to the proper standard for judging obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of material that is
"obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," does not (1) violate the freedom of speech or press guaranteed by
the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt.
Pp. 354 U. S. 491-492.

6. When applied according to the proper standard for judging obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a
misdemeanor to keep for sale or to advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press guaranteed by
the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide
reasonably ascertainable standards of guilt. Pp. 354 U. S. 491-492.

7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power
delegated to Congress by Art. I, § 8, cl. 7, and it

Page 354 U. S. 478

does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp.354 U. S. 492-493.

8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal
postal functions -- even when applied to a mail-order business. Pp. 354 U. S. 493-494.

237 F.2d 796, affirmed.

138 Cal.App.2d Supp. 909, 292 P.2d 90, affirmed.

Page 354 U. S. 479

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the
federal obscenity statute [Footnote 1] violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of
speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code [Footnote 2]
invade the freedoms of speech and press as they may be incorporated in

Page 354 U. S. 480

the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.

Other constitutional questions are: whether these statutes violate due process, [Footnote 3] because too vague to support conviction for crime; whether
power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and
Tenth Amendments (raised in Roth), and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to
establish post offices and post roads, preempted the regulation of the subject matter (raised in Alberts).

Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to
solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him
with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the
Court of Appeals for the Second Circuit. [Footnote 4] We granted certiorari. [Footnote 5]

Page 354 U. S. 481

Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District
(having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with
writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the
Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. [Footnote 6] We noted probable jurisdiction.
[Footnote 7]

The dispositive question is whether obscenity is utterance within the area of protected speech and press. [Footnote 8] Although this is the first time the
question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in
numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte
Jackson, 96 U. S. 727, 96 U. S. 736-737; United States v. Chase, 135 U. S. 255, 135 U. S. 261; Robertson v. Baldwin, 165 U. S. 275, 165 U. S.
281; Public Clearing House v. Coyne, 194 U. S. 497, 194 U. S. 508; Hoke v. United States, 227 U. S. 308, 227 U. S. 322; Near v. Minnesota, 283 U. S.
697, 283 U. S. 716; Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572; Hannegan v. Esquire, Inc., 327 U. S. 146,327 U. S. 158; Winters
v. New York, 333 U. S. 507, 333 U. S. 510; Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 266. [Footnote 9]

Page 354 U. S. 482

The guaranties of freedom of expression [Footnote 10] in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute
protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, [Footnote 11] and all of those States made either
blasphemy or profanity, or both, statutory crimes. [Footnote 12] As early as

Page 354 U. S. 483

1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of
religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and
obscenity were related offenses.

In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing
did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v.
Illinois, 343 U. S. 250, 343 U. S. 266. At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there
is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [Footnote 13]

Page 354 U. S. 484

The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes
desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec:

"The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality,
and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and
its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of
conducting affairs."

1 Journals of the Continental Congress 108 (1774).

All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of
opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.
[Footnote 14] But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection
for

Page 354 U. S. 485

that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations,
[Footnote 15] in the obscenity laws of all of the 48 States, [Footnote 16] and in the 20 obscenity laws enacted by the Congress from 1842 to 1956.
[Footnote 17] This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572:

". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality. . . ."

(Emphasis added.) We hold that obscenity is not within the area of constitutionally protected speech or press.

It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish

Page 354 U. S. 486

incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to
such thoughts. In Roth, the trial Judge instructed the jury:

"The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to
excite lustful thoughts."

(Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal.App.2d Supp. 959, 178 P.2d 853, namely, whether
the material has "a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires." (Emphasis added.) It
is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly
create a clear and present danger of anti-social conduct, [Footnote 18] or will probably induce its recipients to such conduct. [Footnote 19] But, in light of
our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois,
supra, at 343 U. S. 266:

"Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the
issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech,

Page 354 U. S. 487

for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class."

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.
[Footnote 20] The portrayal of sex, e.g., in art, literature and scientific works, [Footnote 21] is not itself sufficient reason to deny material the
constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of
absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to all such problems,

Page 354 U. S. 488

this Court said in Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102:

"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of
public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from
oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with
respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about
which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."

(Emphasis added.)

The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to
its continued growth. [Footnote 22] Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal
and state intrusion into this area cannot be left ajar; it must be kept tightly closed, and opened only the slightest crack necessary to prevent
encroachment upon more important interests. [Footnote 23] It is therefore vital that the standards for judging obscenity safeguard the protection of
freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated

Page 354 U. S. 489

excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. [Footnote 24] Some American courts adopted this standard,
[Footnote 25] but later decisions have rejected it and substituted this test: whether, to the average person, applying contemporary community standards,
the dominant theme of the material, taken as a whole, appeals to prurient interest. [Footnote 26] The Hicklin test, judging obscenity by the effect of
isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as
unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to
withstand the charge of constitutional infirmity.

Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in
ruling on a motion to dismiss, the trial judge indicated that, as the

Page 354 U. S. 490

trier of facts, he was judging each item as a whole as it would affect the normal person, [Footnote 27] and, in Roth, the trial judge instructed the jury as
follows:

". . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the
young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly wise and
sophisticated indifferent and unmoved. . . ."

"* * * *"

"The test in each case is the effect of the book, picture or publication considered as a whole not upon any particular class, but upon all those whom it is
likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as
a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and
publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common
conscience of the community by present-day standards."

"* * * *"

"In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and, in
determining that conscience, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious --
men, women and children. "

Page 354 U. S. 491

It is argued that the statutes do not provide reasonably ascertainable standards of guilt, and therefore violates the constitutional requirements of due
process. Winters v. New York, 333 U. S. 507. The federal obscenity statute makes punishable the mailing of material that is "obscene, lewd, lascivious,
or filthy . . . or other publication of an indecent character." [Footnote 28] The California statute makes punishable, inter alia, the keeping for sale or
advertising material that is "obscene or indecent." The thrust of the argument is that these words are not sufficiently precise, because they do not mean
the same thing to all people, all the time, everywhere.

Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote 29] This Court, however, has consistently held that
lack of precision is not itself offensive to the requirements of due process. ". . . [T]he Constitution does not require impossible standards"; all that is
required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and
practices. . . ." United States v. Petrillo, 332 U. S. 1, 332 U. S. 7-8. These words, applied according to the proper standard for judging obscenity, already
discussed, give adequate warning of the conduct proscribed, and mark

". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to
determine the side of the line on

Page 354 U. S. 492

which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ."

Id. at 332 U. S. 7. See also United States v. Harriss, 347 U. S. 612, 347 U. S. 624, n. 15; Boyce Motor Lines, Inc. v. United States,342 U. S. 337, 342 U.
S. 340; United States v. Ragen, 314 U. S. 513, 314 U. S. 523-524; United States v. Wurzbach, 280 U. S. 396; Hygrade Provision Co. v. Sherman, 266
U. S. 497; Fox v. Washington, 236 U. S. 273; Nash v. United States, 229 U. S. 373. [Footnote 30]

In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards
against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.

Roth's argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the
States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression
not excepted from the sweep of the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the
press. . . ." (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment. [Footnote
31] We

Page 354 U. S. 493

therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to
Congress by Art. I, § 8, cl. 7. [Footnote 32] In United Public Workers v. Mitchell, 330 U. S. 75,330 U. S. 95-96, this Court said:

". . . The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the
people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the
inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of
invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. . . ."

Alberts argues that, because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly
preempted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal
statute deals only with actual

Page 354 U. S. 494

mailing; it does not eliminate the power of the state to punish "keeping for sale" or "advertising" obscene material. The state statute in no way imposes a
burden or interferes with the federal postal functions.

". . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation
involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal
functions. . . ."

Railway Mail Assn. v. Corsi, 326 U. S. 88, 326 U. S. 96.

The judgments are

Affirmed.

Miller v. California, 413 U.S. 15 (1973)

Miller v. California

No. 70-73

Argued January 18-19, 1972

Reargued November 7, 1972

Decided June 21, 1973

413 U.S. 15

APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT

OF CALIFORNIA, COUNTY OF ORANGE

Syllabus

Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity
test formulated in Memoirs v. Massachusetts, 383 U. S. 413, 383 U. S. 418(plurality opinion). The trial court instructed the jury to evaluate the materials
by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by
the Memoirsplurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476, reaffirmed. A work may be subject to state
regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23-24.

2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the
work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489, (b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of
constitutional claims when necessary. Pp. 413 U. S. 24-25.

3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24-25.

4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community,
and need not employ a "national standard." Pp. 413 U. S. 30-34.

Vacated and remanded.

Page 413 U. S. 16

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a
dissenting opinion, post, p. 413 U. S. 37. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S.
47.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases
involving what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 390 U. S. 704 (1968)
(concurring and dissenting).

Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was
convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [Footnote 1]

Page 413 U. S. 17

and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction
was specifically

Page 413 U. S. 18

based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport
Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained
to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film
entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very
explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.

This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive
sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have
a legitimate interest in prohibiting dissemination or exhibition of obscene material [Footnote 2]

Page 413 U. S. 19

when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to
juveniles. Stanley v. Georgia, 394 U. S. 557, 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate Circuit,
Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184, 378 U. S.
195 (1964). See Rabe v. Washington, 405 U. S. 313, 405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351, 402 U.
S. 360-362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S.
622, 341 U. S. 644 645 (1951); Kovacs v. Cooper,336 U. S. 77, 336 U. S. 88-89 (1949); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 169-170
(1944). Cf. Butler v. Michigan,352 U. S. 380, 352 U. S. 382-383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 464-465 (1952) It is in
this context that we are called
Page 413 U. S. 20

on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as
applicable to the States through the Fourteenth Amendment.

The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards
more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity
decisions. In Roth v. United States, 354 U. S. 476(1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene,
lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First
Amendment. Five Justices joined in the opinion stating:

"All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of
opinion -- have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more
important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . .
This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572: "

". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise
any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social

Page 413 U. S. 21

value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ."

[Emphasis by Court in Roth opinion.]

"We hold that obscenity is not within the area of constitutionally protected speech or press."

354 U.S. at 354 U. S. 48 85 (footnotes omitted).

Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices
in the plurality opinion, articulated a new test of obscenity. The plurality held that, under the Roth definition,

"as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material, taken as a whole,
appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) the material is utterly without redeeming social value."

Id. at 383 U. S. 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE
WHITE's dissent, id. at 383 U. S. 460-462, was further underscored when the Memoirs plurality went on to state:

"The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be
proscribed unless it is found to be utterly without redeeming social value."

Id. at 383 U. S. 419 (emphasis in original).

While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required

Page 413 U. S. 22

that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the
words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was
"utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused
Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 383 U. S.
459(Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).

Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what
constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S.
770-771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate
Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704-705 (Harlan, J., concurring and dissenting) (footnote omitted). [Footnote 3] This is not remarkable, for in
the area

Page 413 U. S. 23

of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific
expression. This is an area in which there are few eternal verities.

The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-
stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, [Footnote 4] and no Member of the Court today
supports the Memoirs formulation.

II

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S.
229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354; Roth v. United States, supra, at 354 U. S. 485. [Footnote 5] "The First and Fourteenth
Amendments have never been treated as absolutes [footnote omitted]."Breard v. Alexandria, 341 U.S. at 341 U. S. 642, and cases cited. See Times
Film Corp. v. Chicago, 365 U. S. 43, 365 U. S. 47-50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502. We acknowledge, however, the
inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be

Page 413 U. S. 24
carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-685. As a result, we now confine the permissible scope of such regulation
to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively
construed. [Footnote 6] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the
work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v. United States, supra, at 354 U. S.
489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly
without redeeming social value" test of Memoirs v. Massachusetts,

Page 413 U. S. 25

383 U.S. at 383 U. S. 419; that concept has never commanded the adherence of more than three Justices at one time. [Footnote 7] See supra at 413 U.
S. 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through
the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims
when necessary. See Kois v. Wisconsin, supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383 U. S. 459-460 (Harlan, J.,
dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 284-285 (1964); Roth
v. United States, supra, at 354 U. S. 497-498 (Harlan, J., concurring and dissenting).

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible,
however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and
nudity can

Page 413 U. S. 26

be exhibited or sold without limit in such public places. [Footnote 8] At a minimum, prurient, patently offensive depiction or description of sexual conduct
must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230-
232; Roth v. United States, supra, at 354 U. S. 487; Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940). For example, medical books for the
education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably
sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence,
presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its
individual members. [Footnote 9]

MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra;
Ginzburg v. United

Page 413 U. S. 27

States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and
now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First
Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE
BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to
juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for
these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the
authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict
or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that
these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth
v. United States, supra, at354 U. S. 491-492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If

Page 413 U. S. 28

the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then
"hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE
DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U. S. 363, 402 U. S. 379-380 (1971)
(Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 383 U. S. 476, 383 U. S. 491-492 (Black, J., and DOUGLAS, J.,
dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508-514 (DOUGLAS,
J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone.

MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our
docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested materials
"is hardly a source of edification to the members of this Court." Paris Adult

Page 413 U. S. 29

Theatre I v. Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of
tension between state and federal courts. . . ."

"The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure
standards, have pronounced it so."

Id. at 413 U. S. 93, 413 U. S. 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on
both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to
isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New
York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike.

This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale -- an
absolutist, "anything goes" view of the First Amendment -- because it will lighten our burdens. [Footnote 11] "Such an abnegation of judicial supervision
in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S. 187-188 (opinion of
BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under
the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v.
United States, supra, at 354 U. S. 482-485.

"Our duty admits of no 'substitute for facing up

Page 413 U. S. 30

to the tough individual problems of constitutional judgment involved in every obscenity case.' [Roth v. United States, supra,at 354 U. S. 498]; see Manual
Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]."

Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.).

III

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this
does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently
offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such
standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to
decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to
require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal
prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To
require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a
"national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state
prosecution under the controlling case

Page 413 U. S. 31

law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient
interest," and, in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community
standards of decency," it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity
were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to
the testimony of the State's expert on community standards [Footnote 12] or to the instructions of the trial judge on "state-wide" standards. On appeal to
the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than
national, standards violated the First and Fourteenth Amendments.

We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state
community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable
"national standards" when attempting to determine whether certain materials are obscene as a matter

Page 413 U. S. 32

of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200:

"It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards --
not a national standard, as is sometimes argued. I believe that there is no provable 'national standard.' . . . At all events, this Court has not been able to
enunciate one, and it would be unreasonable to expect local courts to divine one."

It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of
conduct found tolerable in Las Vegas, or New York City. [Footnote 13]

Page 413 U. S. 33

See Hoyt v. Minnesota, 399 U.S. at 524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J.,
dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan,
J., dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40
Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378
U. S. 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505-506 (Harlan, J., concurring and dissenting). People in different
States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear
in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509, the primary concern with requiring a jury to apply the standard of "the average person, applying
contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average
person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v. United States, supra, at 354 U. S.
489. Cf. the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with
reference to "contemporary

Page 413 U. S. 34

standards of the State of California" serves this protective purpose and is constitutionally adequate. [Footnote 14]

IV
The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with
commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for
freedom. It is a "misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645. The First
Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a
majority of the people approve of the ideas these works represent.

"The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of

Page 413 U. S. 35

political and social changes desired by the people,"

Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v. Alabama, 310 U.S.
at 310 U. S. 101-102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter.
[Footnote 15]

There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to
sex, see Roth v. United States, supra, at 354 U. S. 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific
ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period"
not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." [Footnote 16] We do not see the
harsh hand

Page 413 U. S. 36

of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political liberty lurking in every state regulation of commercial exploitation
of human interest in sex.

MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever be forestalled."Paris Adult Theatre I v. Slaton,
post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by
the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it
unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults;
indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S.
at 390 U. S. 690. [Footnote 17] One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of
prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive "hard core" materials is
needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphlne.

In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by
the States, subject to the specific safeguards enunciated

Page 413 U. S. 37

above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying
"contemporary community standards," see Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United States, supra, at 354 U. S. 489, not "national
standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court
for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film,
post at 413 U. S. 130 n. 7.

Vacated and remanded.

RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES UNION ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

No. 96-511. Argued March 19, 1997-Decided June 26, 1997

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international
network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of
information from around the world. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes the "knowing" transmission of "obscene or
indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any
message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory
activities or organs." Mfirmative defenses are provided for those who take "good faith, ... effective ... actions" to restrict access by minors to the
prohibited communications, § 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified
credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(I) and 223(d).
After making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of
both challenged provisions. The court's judgment enjoins the Government from enforcing § 223(a)(I)(B)'s prohibitions insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited
therein. The injunction against enforcement of § 223(d) is unqualified because that section contains no separate reference to obscenity or child
pornography. The Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in holding that the
CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague.

Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment.
Pp. 864-885.

845

(a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth
Amendment issue. P. 864.
(b) A close look at the precedents relied on by the GovernmentGinsberg v. New York, 390 U. S. 629; FCC v. Pacifica Foundation, 438 U. S. 726;
and Renton v. Playtime Theatres, Inc., 475 U. S. 41-raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the
various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted
materials; is not limited to commercial transactions; fails to provide any definition of "indecent" and omits any requirement that "patently offensive"
material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency
familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot
be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech. These precedents,
then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 864-868.

(c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media-the history of extensive Government
regulation of broadcasting, see, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 399-400; the scarcity of available frequencies at its inception,
see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal.,
Inc. v. FCC, 492 U. S. 115, 128-are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny
that should be applied to the Internet. Pp.868-870.

(d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it
problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty
among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e.
g., Gentile v. State Bar of Nev., 501 U. S. 1030, coupled with its increased deterrent effect as a criminal statute, see, e. g., Dombrowski v. Pfister, 380 U.
S. 479, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA
is not saved from vagueness by the fact that its "patently offensive" stand-

846

ard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S. 15,24. The second Miller prong reduces the
inherent vagueness of its own "patently offensive" term by requiring that the proscribed material be "specifically defined by the applicable state law." In
addition, the Miller definition applies only to "sexual conduct," whereas the CDA prohibition extends also to "excretory activities" and "organs" of both a
sexual and excretory nature. Each of Miller's other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a
definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA's vagueness
undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp.870-874.

(e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an
interest in protecting children from potentially harmful materials, see, e. g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a
large amount of speech that adults have a constitutional right to send and receive, see, e. g., Sable, 492 U. S., at 126. Its breadth is wholly
unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's
legitimate purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the other hand, the District Court found that currently
available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which
the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives such as
requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing
some tolerance for parental choice, and regulating some portions of the Internet differently from others. Particularly in the light of the absence of any
detailed congressional findings, or even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored.
Pp.874-879.

(f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected. First, the contention that the Act is
constitutional because it leaves open ample "alternative channels" of communication is unpersuasive because the CDA regulates speech on the basis of
its content, so that a "time, place, and manner" analysis is inapplicable. See, e. g., Consolidated Edison Co. of N. Y. v.

847

Public Servo Comm'n of N. Y., 447 U. S. 530, 536. Second, the assertion that the CDA's "knowledge" and "specific person" requirements significantly
restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open
to all comers and that even the strongest reading of the "specific person" requirement would confer broad powers of censorship, in the form of a
"heckler's veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific,
educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 879-881.

(g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The Government's argument that transmitters may
take protective "good faith actio[n]" by "tagging" their indecent communications in a way that would indicate their contents, thus permitting recipients to
block their reception with appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening software does
not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The
Government also failed to prove that § 223(b)(5)'s verification defense would significantly reduce the CDA's heavy burden on adult speech. Although
such verification is actually being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it is not
economically feasible for most noncommercial speakers. Pp.881-882.

(h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring its severability clause, § 608, and by construing
nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, 413 U. S., at 18, and §
223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, the Court can sever the term "or
indecent" from the statute, leaving the rest of § 223(a) standing. Pp. 882-885.

(i) The Government's argument that its "significant" interest in fostering the Internet's growth provides an independent basis for upholding the CDA's
constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the
unregulated availability of "indecent" and "patently offensive" material is driving people away from the Internet. P. 885.

929 F. Supp. 824, affirmed.

848

STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 886.

Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General
Hunger, Deputy Solicitor General Kneedler, Irving L. Gornstein, Barbara

Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees American Library Association et al. were Ann M. Kappler, Paul M.
Smith, Donald B. Verrilli, Jr., John B. Morris, Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James Wheaton, Jerry Berman, Elliot M. Mincberg,
Lawrence S. Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J. Halpert, Michael Traynor, Robert P. Taylor, Rene Milam, Marc Jacobson,
Bruce W Sanford, and Henry S. Hoberman. Christopher A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan Presser, David L.
Sobel, Marc Rotenberg, and Roger Evans filed a brief for appellees American Civil Liberties Union Foundation et al. *

*Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et al. by Bruce A. Taylor and Cathleen A. Cleaver; for Enough is
Enough et al. by Ronald D. Maines; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson,
Sr., Colby M. May, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for Morality in Media, Inc., by Paul J. McGeady and Robert W
Peters; and for James J. Clancy by Mr. Clancy, pro se, and Carol A. Clancy.

Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by James D. Crawford, Carl A. Solano,
Theresa E. Loscalzo, Jennifer DuFault James, and Joseph T. Lukens; for Apollomedia Corporation et al. by William Bennett Turner; for the Association
of National Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G. Brody, Mary Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause; for
the Chamber of Commerce of the United States by Clifford M. Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and

849

JUSTICE STEVENS delivered the opinion of the Court.

At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the
Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-
judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment.1

The District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See 929 F. Supp. 824,
830-849 (ED Pa. 1996).2 The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that
medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for
the legal issues, we begin with a summary of the undisputed facts.

The Internet

The Internet is an international network of interconnected computers. It is the outgrowth of what began in 1969 as a

Robin S. Conrad; for Feminists for Free Expression by Barbara M cDowell; for the National Association of Broadcasters et al. by Floyd Abrams, Jack N.
Goodman, and Susanna M. Lowy; for Playboy Enterprises, Inc., by Robert Corn-Revere and Burton Joseph; for the Reporters Committee for Freedom of
the Press et al. by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al. by Jamie B. W Stecher; and for Volunteer Lawyers for the Arts et
al. by Daniel H. Weiner.

Raphael Winick filed a brief of amicus curiae for the Speech Communication Association.

1 "Congress shall make no law ... abridging the freedom of speech."

2 The Court made 410 findings, including 356 paragraphs of the parties' stipulation and 54 findings based on evidence received in open court. See 929
F. Supp., at 830, n. 9, 842, n. 15.

850

military program called "ARPANET," 3 which was designed to enable computers operated by the military, defense contractors, and universities
conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a
war. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each
other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. The
Internet is "a unique and wholly new medium of worldwide human communication."4

The Internet has experienced "extraordinary growth." 5 The number of "host" computers-those that store information and relay communications-
increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United
States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999.

Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and
universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many
communities and local libraries provide free access; and an increasing number of storefront "computer coffee shops" provide access for a small hourly
fee. Several major national "online services" such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own
extensive proprietary networks as well as a link to the much larger resources of the Internet. These com-
3 An acronym for the network developed by the Advanced Research Project Agency.

4Id., at 844 (finding 81). 5Id., at 831 (finding 3).

851

mercial online services had almost 12 million individual subscribers at the time of trial.

Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are
constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail),
automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the "World Wide Web." All of
these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a
unique medium-known to its users as "cyberspace" -located in no particular geographical location but available to anyone, anywhere in the world, with
access to the Internet.

E-mail enables an individual to send an electronic message-generally akin to a note or letter-to another individual or to a group of addressees. The
message is generally stored electronically, sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known through
some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the
message to the group's other subscribers. Newsgroups also serve groups of regular participants, but these po stings may be read by others as well.
There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the
music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups,
po stings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to
communicate more immediately can enter a chat room to engage in real-time dialogue-in other words, by typing messages to one another that appear
almost immediately on

852

the others' computer screens. The District Court found that at any given time "tens of thousands of users are engaging in conversations on a huge range
of subjects." 6 It is "no exaggeration to conclude that the content on the Internet is as diverse as human thought."7

The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in
remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of
documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate
documents, commonly known as Web "pages," are also prevalent. Each has its own address-"rather like a telephone number."s Web pages frequently
contain information and sometimes allow the viewer to communicate with the page's (or "site's") author. They generally also contain "links" to other
documents created by that site's author or to other (generally) related sites. Typically, the links are either blue or underlined text-sometimes images.

Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial
"search engine" in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the "surfer," or, through
its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by
clicking a computer "mouse" on one of the page's icons or links. Access to most Web pages is freely available, but some allow access only to those who
have purchased the right from a

6Id., at 835 (finding 27). 7Id., at 842 (finding 74). 8Id., at 836 (finding 36).

853

commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed
publications and a sprawling mall offering goods and services.

From the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers,
viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include
government agencies, educational institutions, commercial entities, advocacy groups, and individuals.9 Publishers may either make their material
available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. "No single organization
controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web."
10

Sexually Explicit Material

Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the modestly titillating to the hardest-core." 11 These files
are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally
during the course of an imprecise search. "Once a provider posts its content on the Internet, it cannot prevent that content from entering any
community." 12 Thus, for example,

9 "Web publishing is simple enough that thousands of individual users and small community organizations are using the Web to publish their own
personal 'home pages,' the equivalent of individualized newsletters about that person or organization, which are available to everyone on the
Web." Id., at 837 (finding 42).

l°Id., at 838 (finding 46). 11 Id., at 844 (finding 82). 12 Ibid. (finding 86).
854

"when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new
exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in
Cincinnati, Mobile, or Beijing-wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street
language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague." 13

Some of the communications over the Internet that originate in foreign countries are also sexually explicit.14

Though such material is widely available, users seldom encounter such content accidentally. "A document's title or a description of the document will
usually appear before the document itself ... and in many cases the user will receive detailed information about a site's content before he or she need
take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content." 15 For that reason, the "odds are
slim" that a user would enter a sexually explicit site by accident.16 Unlike communications received by radio or television, "the receipt of information on
the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some
ability to read to retrieve material and thereby to use the Internet unattended." 17

Systems have been developed to help parents control the material that may be available on a home computer with In-

13 Ibid. (finding 85).

14Id., at 848 (finding 117). 15Id., at 844-845 (finding 88). 16 Ibid.

17Id., at 845 (finding 89).

855

ternet access. A system may either limit a computer's access to an approved list of sources that have been identified as containing no adult material, it
may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. "Although parental control
software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images."18
Nevertheless, the evidence indicates that "a reasonably effective method by which parents can prevent their children from accessing sexually explicit
and other material which parents may believe is inappropriate for their children will soon be widely available." 19

Age Verification

The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there "is no effective way to
determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms." 20 The Government
offered no evidence that there was a reliable way to screen recipients and participants in such forums for

18Id., at 842 (finding 72). 19 Ibid. (finding 73).

2°Id., at 845 (finding 90): "An e-mail address provides no authoritative information about the addressee, who may use an e-mail .alias. or an anonymous
remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would
be or rapidly become incomplete. For these reasons, there is no reliable way in many instances for a sender to know if the e-mail recipient is an adult or
a minor. The difficulty of e-mail age verification is compounded for mail exploders such as listservs, which automatically send information to all e-mail
addresses on a sender's list. Government expert Dr. Olsen agreed that no current technology could give a speaker assurance that only adults were
listed in a particular mail exploder's mailing list."

856

age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics, or
other subjects that potentially elicit "indecent" or "patently offensive" contributions, it would not be possible to block their access to that material and "still
allow them access to the remaining content, even if the overwhelming majority of that content was not indecent." 21

Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or
an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by
payment to a verification agency. U sing credit card possession as a surrogate for proof of age would impose costs on noncommercial Web sites that
would require many of them to shut down. For that reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial
number of Internet content providers." 929 F. Supp., at 846 (finding 102). Moreover, the imposition of such a requirement "would completely bar adults
who do not have a credit card and lack the resources to obtain one from accessing any blocked material." 22

Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not
contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the
District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage
users from accessing their sites and because the cost of creating and

21 Ibid. (finding 93).

22Id., at 846 (finding 102).

857

maintaining such screening systems would be "beyond their reach." 23

In sum, the District Court found:

"Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could
ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification
systems make them effectively unavailable to a substantial number of Internet content providers." Ibid. (finding 107).

II

The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important legislative enactment. As stated on the first of its 103
pages, its primary purpose was to reduce regulation and encourage "the rapid deployment of new telecommunications technologies." The major
components of the statute have nothing to do with the Internet; they were designed to promote competition in the local telephone service market, the
multichannel video mar-

23Id., at 847 (findings 104-106):

"At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging
listeners to access their speech as contrary to their goals of making their materials available to a wide audience free of charge.

"There is evidence suggesting that adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of
a credit card or password. Andrew Anker testified that HotWired has received many complaints from its members about HotWired's registration system,
which requires only that a member supply a name, e-mail address and self-created password. There is concern by commercial content providers that
age verification requirements would decrease advertising and revenue because advertisers depend on a demonstration that the sites are widely
available and frequently visited."

858

ket, and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the product of extensive committee hearings and the
subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives. By contrast, Title V-known as the
"Communications Decency Act of 1996" (CDA)-contains provisions that were either added in executive committee after the hearings were concluded or
as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of the two statutory provisions
challenged in this case.24 They are informally de-

24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See also id., at 15505. This amendment, as revised, became § 502 of the
Telecommunications Act of 1996, 110 Stat. 133, 47 U. S. C. §§ 223(a)-(e) (1994 ed., Supp. II). Some Members of the House of Representatives
opposed the Exon Amendment because they thought it "possible for our parents now to child-proof the family computer with these products available in
the private sector." They also thought the Senate's approach would "involve the Federal Government spending vast sums of money trying to define
elusive terms that are going to lead to a flood of legal challenges while our kids are unprotected." These Members offered an amendment intended as a
substitute for the Exon Amendment, but instead enacted as an additional section of the Act entitled "Online Family Empowerment." See 110 Stat. 137,
47 U. S. C. §230 (1994 ed., Supp. II); 141 Congo Rec. 27881 (1995). No hearings were held on the provisions that became law. See S. Rep. No. 104-
23, p. 9 (1995). After the Senate adopted the Exon Amendment, however, its Judiciary Committee did conduct a one-day hearing on "Cyberporn and
Children." In his opening statement at that hearing, Senator Leahy observed:

"It really struck me in your opening statement when you mentioned, Mr. Chairman, that it is the first ever hearing, and you are absolutely right. And yet
we had a major debate on the floor, passed legislation overwhelmingly on a subject involving the Internet, legislation that could dramatically change-
some would say even wreak havoc-on the Internet. The Senate went in willy-nilly, passed legislation, and never once had a hearing, never once had a
discussion other than an hour or so on the floor." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and the Need for
Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 7-8 (1995).

859

scribed as the "indecent transmission" provision and the "patently offensive display" provision.25

The first, 47 U. s. C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years
of age. It provides in pertinent part:

"(a) Whoever-

"(1) in interstate or foreign communications-

"(B) by means of a telecommunications device knowingly-

"(i) makes, creates, or solicits, and "(ii) initiates the transmission of,

"any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the
communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
"(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be
used for such activity,

"shall be fined under Title 18, or imprisoned not more than two years, or both."

The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person
under 18 years of age. It provides:

25 Although the Government and the dissent break § 223(d)(1) into two separate "patently offensive" and "display" provisions, we follow the convention
of both parties below, as well as the District Court's order and opinion, in describing § 223(d)(1) as one provision.

860

"(d) Whoever-

"(1) in interstate or foreign communications knowingly-

"(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or

"(B) uses any interactive computer service to display in a manner available to a person under 18 years of age,

"any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call
or initiated the communication; or

"(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent
that it be used for such activity,

"shall be fined under Title 18, or imprisoned not more than two years, or both."

The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5).26 One covers those who take "good faith, reasonable,
effective, and appropriate actions" to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who

26 In full, § 223(e)(5) provides:

"(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a
facility for an activity under subsection (a)(l)(B) of this section that a person-

"(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a
communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any
method which is feasible under available technology; or

"(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal
identification number."

861

restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or
code. § 223(e)(5)(B).

III

On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs 27 filed suit against the Attorney General of the United States and
the Department of Justice challenging the constitutionality of §§ 223(a)(1) and 223(d). A week later, based on his conclusion that the term "indecent"
was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter entered a temporary restraining order against enforcement of §
223(a)(1)(B)(ii) insofar as it applies to indecent communications. A second suit was then filed by 27 additional plaintiffs,2S the two cases

27 American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education
Association; Computer Professionals for Social Responsibility; N ational Writers Union; Clarinet Communications Corp.; Institute for Global
Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project,
Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page;
Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc.

28 American Library Association; America Online, Inc.; American Booksellers Association, Inc.; American Booksellers Foundation for Free Expression;
American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and Writers;
Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; CompuServe Incorporated; Families Against Internet Censorship;
Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive
Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L. L. C.; National Press Photographers
Association; Netcom On-Line Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of
Professional Journalists; and Wired Ventures, Ltd.
862

were consolidated, and a three-judge District Court was convened pursuant to § 561 of the CDA.29 After an evidentiary hearing, that court entered a
preliminary injunction against enforcement of both of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment
was unanimous.

Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the vast range of online material covered or potentially covered by
the CDA," but acknowledged that the interest was "compelling" with respect to some of that material. 929 F. Supp., at 853. She concluded, nonetheless,
that the statute "sweeps more broadly than necessary and thereby chills the expression of adults" and that the terms "patently offensive" and "indecent"
were "inherently vague." Id., at 854. She also determined that the affirmative defenses were not "technologically or economically feasible for most
providers," specifically considering and rejecting an argument that providers could avoid liability by "tagging" their material in a manner that would allow
potential readers to screen out unwanted transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government's suggestion that the scope of
the statute could be narrowed by construing it to apply only to commercial pornographers. Id., at 854-855.

Judge Buckwalter concluded that the word "indecent" in § 223(a)(1)(B) and the terms "patently offensive" and "in context" in § 223(d)(1) were so vague
that criminal enforcement of either section would violate the "fundamental constitutional principle" of "simple fairness," id., at 861, and the specific
protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the Government's argument that the challenged provisions
would be applied only to "pornographic" materials, noting that, unlike obscenity, "indecency has not been defined to exclude works of serious literary,
artistic, political or scientific value." Id., at 863.

29110 Stat. 142-143, note following 47 U. S. C. §223 (1994 ed., Supp. II).

863

Moreover, the Government's claim that the work must be considered patently offensive "in context" was itself vague because the relevant context might
"refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the
speaker, or whether or not it is accompanied by appropriate warnings." Id., at 864. He believed that the unique nature of the Internet aggravated the
vagueness of the statute. Id., at 865, n. 9.

Judge Dalzell's review of "the special attributes of Internet communication" disclosed by the evidence convinced him that the First Amendment denies
Congress the power to regulate the content of protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the CDA
would abridge significant protected speech, particularly by noncommercial speakers, while "[p]erversely, commercial pornographers would remain
relatively unaffected." Id., at 879. He construed our cases as requiring a "medium-specific" approach to the analysis of the regulation of mass
communication, id., at 873, and concluded that the Internet-as "the most participatory form of mass speech yet developed," id., at 883-is entitled to "the
highest protection from governmental intrusion," ibid.30

30 See also 929 F. Supp., at 877: "Four related characteristics of Internet communication have a transcendent importance to our shared holding that the
CDA is unconstitutional on its face. We explain these characteristics in our Findings of fact above, and I only rehearse them briefly here. First, the
Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low
barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium,
and even creates a relative parity among speakers." According to Judge Dalzell, these characteristics and the rest of the District Court's findings "lead to
the conclusion that Congress may not regulate indecency on the Internet at all." Ibid. Because appellees do not press this argument before this Court,
we do not consider it. Appellees also do not dispute that the Government generally has a compelling interest in protecting minors from "indecent" and
"patently offensive" speech.

864

The judgment of the District Court enjoins the Government from enforcing the prohibitions in § 223(a)(1)(B) insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited
therein. The injunction against enforcement of §§ 223(d)(1) and (2) is unqualified because those provisions contain no separate reference to obscenity
or child pornography.

The Government appealed under the CDA's special review provisions, § 561, 110 Stat. 142-143, and we noted probable jurisdiction, see 519 U. S. 1025
(1996). In its appeal, the Government argues that the District Court erred in holding that the CDA violated both the First Amendment because it is
overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA because of its relevance to the First Amendment
overbreadth inquiry, we conclude that the judgment should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by reviewing
the principal authorities on which the Government relies. Then, after describing the overbreadth of the CDA, we consider the Government's specific
contentions, including its submission that we save portions of the statute either by severance or by fashioning judicial limitations on the scope of its
coverage.

IV

In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390
U. S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). A close look at
these cases, however, raises-rather than relievesdoubts concerning the constitutionality of the CDA.

In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered
obscene as to them even if not obscene as to adults. We rejected the defendant's broad
865

submission that "the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made
to depend on whether the citizen is an adult or a minor." 390 U. S., at 636. In rejecting that contention, we relied not only on the State's independent
interest in the well-being of its youth, but also on our consistent recognition of the principle that "the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of our society." 31

In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that "the prohibition against sales to
minors does not bar parents who so desire from purchasing the magazines for their children." Id., at 639. Under the CDA, by contrast, neither the
parents' consent-nor even their participationin the communication would avoid the application of the statute.32 Second, the New York statute applied
only to commercial transactions, id., at 647, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material
that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors." Id., at 646. The CDA fails to provide us
with any definition of the term "indecent" as used in § 223(a)(1) and, importantly, omits any requirement that the "patently offensive" material covered by
§ 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age

31390 U. S., at 639. We quoted from Prince v. Massachusetts, 321 U. S. 158, 166 (1944): "It is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."

32 Given the likelihood that many e-mail transmissions from an adult to a minor are conversations between family members, it is therefore incorrect for
the partial dissent to suggest that the provisions of the CDA, even in this narrow area, "are no different from the law we sustained in Ginsberg." Post, at
892.

866

of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority.

In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute
monologue entitled "Filthy Words" that had previously been delivered to a live audience "could have been the subject of administrative sanctions." 438
U. S., at 730 (internal quotation marks omitted). The Commission had found that the repetitive use of certain words referring to excretory or sexual
activities or organs "in an afternoon broadcast when children are in the audience was patently offensive" and concluded that the monologue was
indecent "as broadcast." Id., at 735. The respondent did not quarrel with the finding that the afternoon broadcast was patently offensive, but contended
that it was not "indecent" within the meaning of the relevant statutes because it contained no prurient appeal. After rejecting respondent's statutory
arguments, we confronted its two constitutional arguments: (1) that the Commission's construction of its authority to ban indecent speech was so broad
that its order had to be set aside even if the broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First Amendment
forbade any abridgment of the right to broadcast it on the radio.

In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that the First Amendment does not prohibit all
governmental regulation that depends on the content of speech. Id., at 742-743. Accordingly, the availability of constitutional protection for a vulgar and
offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744-748. Relying on the premise that "of all forms of
communication" broadcasting had received the most limited First Amendment protection, id., at 748-749, the Court concluded that the ease with which
children may obtain access to broadcasts,

867

"coupled with the concerns recognized in Ginsberg," justified special treatment of indecent broadcasting. Id., at 749-750.

As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CDA. First, the order
in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic
departure from traditional program content in order to designate when-rather than whether-it would be permissible to air such a program in that particular
medium. The CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with
the unique characteristics of the Internet. Second, unlike the CDA, the Commission's declaratory order was not punitive; we expressly refused to decide
whether the indecent broadcast "would justify a criminal prosecution." 438 U. S., at 750. Finally, the Commission's order applied to a medium which as a
matter of history had "received the most limited First Amendment protection," id., at 748, in large part because warnings could not adequately protect the
listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of
encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.

In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of
the films shown in the theaters, but rather at the "secondary effects" -such as crime and deteriorating property values-that these theaters fostered: "'It is
thee] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech.''' 475 U. S., at 49
(quoting Young v. American Mini Theatres, Inc., 427 U. S. 50, 71, n. 34 (1976)). According to the Government, the CDA is constitutional be-

868

cause it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the
CDA is to protect children from the primary effects of "indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech.
Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed as a form of time, place, and manner
regulation." 475 U. S., at 46. See also Boos v. Barry, 485 U. S. 312, 321 (1988) ("Regulations that focus on the direct impact of speech on its audience"
are not properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134 (1992) ("Listeners' reaction to speech is not a
content-neutral basis for regulation").

These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its
provisions.
 v

In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that "[e]ach medium of expression ... may present its own
problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other
speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court
relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available
frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its "invasive" nature, see Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989).

Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been
subject to the type

869

of government supervision and regulation that has attended the broadcast industry.33 Moreover, the Internet is not as "invasive" as radio or television.
The District Court specifically found that "[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen
unbidden. Users seldom encounter content 'by accident.' " 929 F. Supp., at 844 (finding 88). It also found that "[a]lmost all sexually explicit images are
preceded by warnings as to the content," and cited testimony that" 'odds are slim' that a user would come across a sexually explicit sight by
accident." Ibid.

We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a company engaged in the business of offering sexually oriented
prerecorded telephone messages (popularly known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act of
1934 that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was
constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the complete ban and
criminalization of indecent commercial telephone messages, the Government relied on Pacifica, arguing that the ban was necessary to prevent children
from gaining access to such messages. We agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors"
which extended to shielding them from indecent messages that are not obscene by adult standards, 492 U. S., at

33 Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (CADC 1977) (LevanthaI, J., dissenting), rev'd, FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
When Pacifica was decided, given that radio stations were allowed to operate only pursuant to federal license, and that Congress had enacted
legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of the radio audience might infer some sort of official
or societal approval of whatever was heard over the radio, see 556 F. 2d, at 37, n. 18. No such risk attends messages received through the Internet,
which is not supervised by any federal agency.

870

126, but distinguished our "emphatically narrow holding" in Pacifica because it did not involve a complete ban and because it involved a different
medium of communication, id., at 127. We explained that "the dial-it medium requires the listener to take affirmative steps to receive the
communication." Id., at 127-128. "Placing a telephone call," we continued, "is not the same as turning on a radio and being taken by surprise by an
indecent message." Id., at 128.

Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a
"scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s
many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999."34 This dynamic, multifaceted category of
communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue.
Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any
soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found,
"the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no
basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.

VI

Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it
problematic for purposes of the First Amendment. For instance, each of the two parts

34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)).

871

of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. s. C. § 223(a) (1994 ed., Supp. II), while the second speaks of
material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory
activities or organs," § 223(d). Given the absence of a definition of either term,35 this difference in language will provoke uncertainty among speakers
about how the two standards relate to each other36 and just what they mean.37 Could a speaker confidently assume that a serious discussion about
birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape
would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting
minors from potentially harmful materials.

The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of
such a regulation raises

35 "Indecent" does not benefit from any textual embellishment at all.

"Patently offensive" is qualified only to the extent that it involves "sexual or excretory activities or organs" taken "in context" and "measured by
contemporary community standards."

36 See Gozlon-Peretz v. United States, 498 U. S. 395, 404 (1991) ("[W]here Congress includes particular language in one section of a statute but omits
it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion and exclusion"
(internal quotation marks omitted)).

37 The statute does not indicate whether the "patently offensive" and "indecent" determinations should be made with respect to minors or the population
as a whole. The Government asserts that the appropriate standard is "what is suitable material for minors." Reply Brief for Appellants 18, n. 13
(citing Ginsberg v. New York, 390 U. S. 629, 633 (1968)). But the Conferees expressly rejected amendments that would have imposed such a "harmful
to minors" standard. See S. Conf. Rep. No. 104-230, p. 189 (1996) (S. Conf. Rep.), 142 Congo Rec. H1145, H1165-H1166 (Feb. 1, 1996). The
Conferees also rejected amendments that would have limited the proscribed materials to those lacking redeeming value. See ibid.

872

special First Amendment concerns because of its obvious chilling effect on free speech. See, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030, 1048-
1051 (1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with
penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather
than communicate even arguably unlawful words, ideas, and images. See, e. g., Dombrowski v. Pfister, 380 U. S. 479, 494 (1965). As a practical matter,
this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns than
those implicated by the civil regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996).

The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California, 413 U. S. 15 (1973).
But that is not so. In Miller, this Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually
explicit activities to individuals who had not requested such materials. Id., at 18. Having struggled for some time to establish a definition of obscenity, we
set forth in Miller the test for obscenity that controls to this day:

"(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24 (internal quotation marks and citations omitted).

873

Because the CDA's "patently offensive" standard (and, we assume, arguendo, its synonymous "indecent" standard) is one part of the three-
prong Miller test, the Government reasons, it cannot be unconstitutionally vague.

The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test-the purportedly analogous standard-contains a critical
requirement that is omitted from the CDA: that the proscribed material be "specifically defined by the applicable state law." This requirement reduces the
vagueness inherent in the open-ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is limited to "sexual conduct,"
whereas the CDA extends also to include (1) "excretory activities" as well as (2) "organs" of both a sexual and excretory nature.

The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those
limitations, standing by itself, is not vague.38 Each of Miller's additional two prongs-(l) that, taken as a whole, the material appeal to the "prurient"
interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"-critically limits the uncertain sweep of the obscenity definition. The
second requirement is particularly important because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by contemporary
community standards. See Pope v. Illinois, 481 U. S. 497, 500 (1987). This "societal value" requirement, absent in the CDA, allows appellate courts to
impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government's
contention that courts will be able to give such legal limitations to the CDA's standards is belied by Miller's own rationale for having juries determine
whether material

38 Even though the word "trunk," standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning
is clear when it is one prong of a three-part description of a species of gray animals.

874

is "patently offensive" according to community standards: that such questions are essentially ones of fact.39

In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's
scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to
constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute.

VII

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny
minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive
and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the
legitimate purpose that the statute was enacted to serve.
In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual expression which is indecent but not obscene is protected by
the First Amendment." Sable, 492 U. S., at 126. See also Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) ("[W]here obscenity is not
involved, we have consistently held that the

39413 U. S., at 30 (Determinations of "what appeals to the 'prurient interest' or is 'patently offensive' ... are essentially questions of fact, and our Nation is
simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even
assuming the prerequisite consensus exists"). The CDA, which implements the "contemporary community standards" language of Miller, thus conflicts
with the Conferees' own assertion that the CDA was intended "to establish a uniform national standard of content regulation." S. Conf. Rep., at 191.

875

fact that protected speech may be offensive to some does not justify its suppression"). Indeed, Pacifica itself admonished that "the fact that society may
find speech offensive is not a sufficient reason for suppressing it." 438 U. S., at 745.

It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. See Ginsberg, 390 U. S., at
639; Pacifica, 438 U. S., at 749. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have
explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children." Denver, 518 U. S., at 759 (internal quotation
marks omitted) (quoting Sable, 492 U. S., at 128).40 "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level of
discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 U. S.
60, 74-75 (1983).

The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-a-porn" invalidated in Sable. 929 F. Supp., at 854.
In Sable, 492 U. S., at 129, this Court rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would
be effective in preventing enterprising youngsters from gaining access to indecent communications. Sable thus made clear that the mere fact that a
statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose
inquiry into its validity.41 As we pointed out last

40 Accord, Butler v. Michigan, 352 U. S. 380, 383 (1957) (ban on sale to adults of books deemed harmful to children unconstitutional); Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989) (ban on "dial-aporn" messages unconstitutional); Bolger v. Youngs Drug Products
Corp., 463 U. S. 60, 73 (1983) (ban on mailing of unsolicited advertisement for contraceptives unconstitutional).

41 The lack of legislative attention to the statute at issue in Sable suggests another parallel with this case. Compare 492 U. S., at 129-130 ("[A]side from
conc1usory statements during the debates by proponents of

876

Term, that inquiry embodies an "overarching commitment" to make sure that Congress has designed its statute to accomplish its purpose "without
imposing an unnecessarily great restriction on speech." Denver, 518 U. S., at 741.

In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission
whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication. The findings of the District Court make
clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the
sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person
chat group will be a minor-and therefore that it would be a crime to send the group an indecent message-would surely burden communication among
adults.42

The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining
access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who
is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. 929 F. Supp., at 845 (findings 90-94). As a practical matter, the Court
also found

the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional record presented to us contains no
evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be .... No Congressman or Senator purported to
present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn
messages" (footnote omitted)), with n. 24, supra.

42 The Government agrees that these provisions are applicable whenever "a sender transmits a message to more than one recipient, knowing that at
least one of the specific persons receiving the message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4-5, n. 1.

877

that it would be prohibitively expensive for noncommercialas well as some commercial-speakers who have Web sites to verify that their users are
adults. Id., at 845-848 (findings 95-116).43 These limitations must inevitably curtail a significant amount of adult communication on the Internet. By
contrast, the District Court found that "[dJespite its limitations, currently available user-based software suggests that a reasonably effective method by
which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children
will soon be widely available." Id., at 842 (finding 73) (emphases added).

The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited
to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or
displaying them on their own computers in the presence of minors. The general, undefined terms "indecent" and "patently offensive" cover large
amounts of nonpornographic material with serious educational or other value.44 Moreover, the "community standards" criterion as applied to the Internet
means that any communication avail-

43 The Government asserts that "[t]here is nothing constitutionally suspect about requiring commercial Web site operators ... to shoulder the modest
burdens associated with their use." Brief for Appellants 35. As a matter of fact, however, there is no evidence that a "modest burden" would be effective.

44 Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and
juveniles. See 18 U. S. C. §§ 1464-1465 (criminalizing obscenity); § 2251 (criminalizing child pornography). In fact, when Congress was considering the
CDA, the Government expressed its view that the law was unnecessary because existing laws already authorized its ongoing efforts to prosecute
obscenity, child pornography, and child solicitation. See 141 Congo Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U.
S. Department of Justice, to Sen. Leahy).

878

able to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.45 The regulated subject
matter includes any of the seven "dirty words" used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute
a felony. See Olsen Testimony, Tr. Vol. V, 53:1654:10. It may also extend to discussions about prison rape or safe sexual practices, artistic images that
include nude subjects, and arguably the card catalog of the Carnegie Library.

For the purposes of our decision, we need neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket
prohibition on all "indecent" and "patently offensive" messages communicated to a 17-year-old-no matter how much value the message may contain and
regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the
coverage of this broad statute. Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that
she, in her parental judgment, deems appropriate could face a lengthy prison term. See 47 U. S. C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent
who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in
their home community found the material "indecent" or "patently offensive," if the college town's community thought otherwise.

45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among other cases, appellees offer an additional reason why, in their
view, the CDA fails strict scrutiny. Because so much sexually explicit content originates overseas, they argue, the CDA cannot be "effective." Brief for
Appellees American Library Association et al. 33-34. This argument raises difficult issues regarding the intended, as well as the permissible scope of,
extraterritorial application of the CDA. We find it unnecessary to address those issues to dispose of this case.

879

The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive
provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring
that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with
artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet-such as commercial Web sites-
differently from others, such as chat rooms. Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing
the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all.

VIII

In an attempt to curtail the CDA's facial overbreadth, the Government advances three additional arguments for sustaining the Act's affirmative
prohibitions: (1) that the CDA is constitutional because it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the
CDA's "knowledge" and "specific person" requirement significantly restricts its permissible applications; and (3) that the CDA's prohibitions are "almost
always" limited to material lacking redeeming social value.

The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities-such as chat groups,
newsgroups, and mail exploders-it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted
speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the CDA regulates speech on the basis of its content. A
"time, place, and manner" analysis is therefore inapplicable. See Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y.,

880

447 U. S. 530, 536 (1980). It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert
acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for data base
management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as
individuals are free to publish books. In invalidating a number of laws that banned leafletting on the streets regardless of their content, we explained that
"one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other
place." Schneider v. State (Town of Irvington), 308 U. S. 147, 163 (1939).

The Government also asserts that the "knowledge" requirement of both §§ 223(a) and (d), especially when coupled with the "specific child" element
found in § 223(d), saves the CDA from overbreadth. Because both sections prohibit the dissemination of indecent messages only to persons known to
be under 18, the Government argues, it does not require transmitters to "refrain from communicating indecent material to adults; they need only refrain
from disseminating such materials to persons they know to be under 18." Brief for Appellants 24. This argument ignores the fact that most Internet
forums-including chat rooms, newsgroups, mail exploders, and the Web-are open to all comers. The Government's assertion that the knowledge
requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the "specific person" requirement of §
223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who
might simply log on and inform the would-be discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U. S. C.
§223(d)(1)(A) (1994 ed., Supp. H)-would be present.
881

Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will
necessarily fall outside the CDA's "patently offensive" and "indecent" prohibitions. See also n. 37, supra.

IX

The Government's three remaining arguments focus on the defenses provided in § 223(e)(5).46 First, relying on the "good faith, reasonable, effective,
and appropriate actions" provision, the Government suggests that "tagging" provides a defense that saves the constitutionality of the CDA. The
suggestion assumes that transmitters may encode their indecent communications in a way that would indicate their contents, thus permitting recipients
to block their reception with appropriate software. It is the requirement that the good-faith action must be "effective" that makes this defense illusory. The
Government recognizes that its proposed screening software does not currently exist. Even if it did, there is no way to know whether a potential recipient
will actually block the encoded material. Without the impossible knowledge that every guardian in America is screening for the "tag," the transmitter
could not reasonably rely on its action to be "effective."

For its second and third arguments concerning defenseswhich we can consider together-the Government relies on the latter half of § 223(e)(5), which
applies when the transmitter has restricted access by requiring use of a verified credit card or adult identification. Such verification is not only
technologically available but actually is used by commercial providers of sexually explicit material. These providers, therefore, would be protected by the
defense. Under the findings of the District Court, however, it is not economically feasible for most noncommercial speakers to employ such verification.
Accordingly, this defense would not signifi-

46 For the full text of § 223(e )(5), see n. 26, supra.

882

cantly narrow the statute's burden on noncommercial speech. Even with respect to the commercial pornographers that would be protected by the
defense, the Government failed to adduce any evidence that these verification techniques actually preclude minors from posing as adults.47 Given that
the risk of criminal sanctions "hovers over each content provider, like the proverbial sword of Damocles,"48 the District Court correctly refused to rely on
unproven future technology to save the statute. The Government thus failed to prove that the proffered defense would significantly reduce the heavy
burden on adult speech produced by the prohibition on offensive displays.

We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not
constitute the sort of "narrow tailoring" that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked
that the speech restriction at issue there amounted to "'burn[ing] the house to roast the pig.'" The CDA, casting a far darker shadow over free speech,
threatens to torch a large segment of the Internet community.

At oral argument, the Government relied heavily on its ultimate fall-back position: If this Court should conclude that the CDA is insufficiently tailored, it
urged, we should save the statute's constitutionality by honoring the severability clause, see 47 U. S. C. § 608, and construing nonseverable terms
narrowly. In only one respect is this argument acceptable.

A severability clause requires textual provisions that can be severed. We will follow § 608's guidance by leaving con-

47 Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings while providing little (or no) benefit for transmitters
of indecent messages that have significant social or artistic value. 48929 F. Supp., at 855-856.

883

stitutional textual elements of the statute intact in the one place where they are, in fact, severable. The "indecency" provision, 47 U. S. C. § 223(a) (1994
ed., Supp. II), applies to "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent." (Emphasis
added.) Appellees do not challenge the application of the statute to obscene speech, which, they acknowledge, can be banned totally because it enjoys
no First Amendment protection. See Miller, 413 U. S., at 18. As set forth by the statute, the restriction of "obscene" material enjoys a textual
manifestation separate from that for "indecent" material, which we have held unconstitutional. Therefore, we will sever the term "or indecent" from the
statute, leaving the rest of § 223(a) standing. In no other respect, however, can § 223(a) or § 223(d) be saved by such a textual surgery.

The Government also draws on an additional, less traditional aspect of the CDA's severability clause, 47 U. S. C. § 608, which asks any reviewing court
that holds the statute facially unconstitutional not to invalidate the CDA in application to "other persons or circumstances" that might be constitutionally
permissible. It further invokes this Court's admonition that, absent "countervailing considerations," a statute should "be declared invalid to the extent it
reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 503-504 (1985). There are two flaws in this argument.

First, the statute that grants our jurisdiction for this expedited review, § 561 of the Telecommunications Act of 1961, note following 47 U. S. C. § 223
(1994 ed., Supp. II), limits that jurisdictional grant to actions challenging the CDA "on its face." Consistent with § 561, the plaintiffs who brought this suit
and the three-judge panel that decided it treated it as a facial challenge. We have no authority, in this particular posture, to convert this litigation into an
"as-applied" challenge. Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of the stat-

884
ute, would it be practicable to limit our holding to a judicially defined set of specific applications.

Second, one of the "countervailing considerations" mentioned in Brockett is present here. In considering a facial challenge, this Court may impose a
limiting construction on a statute only if it is "readily susceptible" to such a construction. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397
(1988). See also Erznoznik v. Jacksonville, 422 U. S. 205, 216 (1975) ("readily subject" to narrowing construction). The open-ended character of the
CDA provides no guidance whatever for limiting its coverage.

This case is therefore unlike those in which we have construed a statute narrowly because the text or other source of congressional intent identified a
clear line that this Court could draw. Cf., e. g., Brockett, 472 U. S., at 504-505 (invalidating obscenity statute only to the extent that word "lust" was
actually or effectively excised from statute); United States v. Grace, 461 U. S. 171, 180-183 (1983) (invalidating federal statute banning expressive
displays only insofar as it extended to public sidewalks when clear line could be drawn between sidewalks and other grounds that comported with
congressional purpose of protecting the building, grounds, and people therein). Rather, our decision in United States v. Treasury Employees, 513 U. S.
454, 479, n. 26 (1995), is applicable. In that case, we declined to "dra[w] one or more lines between categories of speech covered by an overly broad
statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn" because doing so "involves a far more serious
invasion of the legislative domain."49 This Court "will not rewrite a ... law

49 As this Court long ago explained: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and
leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the
judicial for the legislative department of the government." United States v. Reese, 92 U. S. 214, 221 (1876). In part because of these

885

to conform it to constitutional requirements." American Booksellers, 484 U. S., at 397.50

XI

In this Court, though not in the District Court, the Government asserts that-in addition to its interest in protecting children-its "[e]qually significant" interest
in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. Brief for Appellants 19. The
Government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless
citizens away from the medium because of the risk of exposing themselves or their children to harmful material.

We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention.
The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence
of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas
than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of
censorship.

For the foregoing reasons, the judgment of the District Court is affirmed.

It is so ordered.

DEFAMATION

CIRIACO BOY GUINGGUING, G.R. No. 128959

Petitioner,

Present:

PUNO, J.,

Chairman,

- versus - AUSTRIA-MARTINEZ,

CALLEJO, SR.,

TINGA, and

CHICO-NAZARIO, JJ.

THE HONORABLE COURT

OF APPEALS and THE

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondents.

September 30, 2005

x-------------------------------------------------------------------- x
 DECISION
TINGA, J.:

The liberty of the press is indeed essential. Whoever would overthrow the liberty of a nation must begin by subduing the
freeness of speech.

- Benjamin Franklin[1]

The right of free expression stands as a hallmark of the modern democratic and humane state.[2] Not only does it assure a persons right to say

freely what is thought freely, it likewise evinces the politys freedom from psychological insecurity. This fundamental liberty is translated into the

constitutional guarantee that no law shall be passed abridging the freedom of speech, of expression, or the press, [3] contained in the Bill of

Rights,[4] which itself obtains a position of primacy in our fundamental law.[5]

Criminal libel laws present a special problem. At face value, they might strike as laws passed that abridge the freedom of speech, expression, or the

press. Whatever seeming conflict between these two precepts has long been judicially resolved with the doctrine that libelous speech does not fall within

the ambit of constitutional protection. Nonetheless, in ascertaining what class of materials may be considered as libelous, the freedom of expression

clause, its purposes as well as the evils it guards against, warrant primordial consideration and application.

Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision[6] and the Resolution[7] of the Court

of Appeals (CA) dated 29 July 1996 and 3 October 1996, respectively, in CA-G.R. CR No. 16413. The CA affirmed with modification[8] the

decision[9] rendered by the Regional Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco Boy Guingguing (petitioner) and Segundo Lim (Lim) guilty

beyond reasonable doubt of the crime of libel. This petition for certiorari was filed by petitioner alone, hence the verdict of guilt with respect to Lim had

already become final and executory.

The antecedent facts follow.

This case originated from a criminal complaint for libel filed by Cirse Choy Torralba (complainant) against Lim and petitioner under Criminal

Case No. CBU-26582. Complainant was a broadcast journalist who handled two programs for radio stations DYLA and DYFX. The radio stations were

based in Cebu City but the programs were aired over a large portion of the Visayas and Mindanao.[10]

On 13 October 1991, Lim caused the publication of records of criminal cases filed against complainant as well as photographs[11] of the latter

being arrested. These were published by means of a one-page advertisement paid for by Lim in the Sunday Post, a weekly publication edited and

published by petitioner. The Sunday Post was circulated in the province of Bohol, as well as in the Visayas and Mindanao. [12] The full text of the

advertisement which was the basis of the information[13] for libel reads:

REQUEST FOR PUBLIC SERVICE

ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY

TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME REGARDING THE DISPOSITION OF THE
FOLLOWING WHICH APPEAR HEREUNDER. THE CASES WERE FOUND IN THE BLOTTER OF THE CEBU CITY
POLICE DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE CASES, WHETHER THEY HAVE BEEN
DISMISSED, ARCHIVED AND/OR PENDING.

Name: CIRSE CHOY TORRALBA

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF

DATE FILED: MAY 10, 1979

COMPLAINANTS: DR. JOVENAL ALMENDRAS

ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY

MR. VICTORIANO VELOSO

ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R

FOR : ESTAFA

DATE FILED: July 12, 1982

COMPLAINANTS: MR. PIO Y. GO AND

MRS. ROSALITA R. ROLDAN

ADDRESS: c/o 2nd Floor Martinez Bldg.

(ALPHA MKTG., INC.),

Jones Ave., Cebu City

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R

FOR: SERIOUS PHYSICAL INJURIES

DATED FILED: APRIL 28, 1980

COMPLAINANTS:

ADDRESS:

DISPOSITION: PROVISIONALLY DISMISSED

DATED: APRIL 14, 1991

NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING COURTESY OF A CEBU CITY
CONCERNED CITIZEN. THE CAPTION STORY BELOW TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN
ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.

[Thereafter followed by a picture of a person with face blotted out being arrested and an inset picture of the
same person with face likewise blotted out, being detained, these pictures being followed by the caption,
which states]:

ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col. Eduardo Ricardo arrested last night a
businessman (extreme left) for his alleged involvement in estafa case filed by APOCEMCO. Left photo a member of the
team serves the warrant of arrest order issued by CEBU RTC Judge German Lee.

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA TO HAVE BEEN SERVED A WARRANT
OF ARREST IN A (P)LUSH UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF THE CEBU CITY POLICE. NOW
TELL ME, IS IT YOU THE SAME CHOY TORRALBA REFERRED TO IN THE CAPTION STORY. IF INDEED YOU ARE
THE ONE AND THE SAME WHO APPEARED IN THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:
 [Thereafter followed by another picture, this time, the face of the person being arrested is clearly shown
to be that of Cirse Choy Torralba, followed by this caption.]

SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy Torralba (left) in a plush uptown Hotel
was disturbed by operatives (right) of the Cebu City Police under P/Lt/Col. Eduardo Ricardo just to serve on the former a
warrant of arrest issued by Cebu RTC Judge German Lee relative to the suit filed by Apocemco against the businessman
(PR)

THANK YOU, AND MY BEST REGARDS.

PAID SPACE BY: (sgd.) SEGUNDO LIM[14]

Asserting inter alia that he had been acquitted and the case/s referred to had already been settled, complainant sought Lim and petitioners conviction for

libel. At the same time, he asked for moral, compensatory and exemplary damages as well as attorneys fees because the publication allegedly placed

him in public contempt and ridicule. It was claimed that the publication was also designed to degrade and malign his person and destroy him as a

broadcast journalist.[15]

Lim, in his defense, claimed that complainant was allegedly making scurrilous attacks against him and his family over the airwaves. Since Lim had no

access to radio time, he opted for paid advertisements via newspaper to answer the attacks,[16] as a measure of self-defense. Lim also argued that

complainant, as a media man and member of the fourth estate, occupied a position almost similar to a public functionary and should not be onion-

skinned and be able to absorb the thrust of public scrutiny.[17]

After trial, the lower court concluded that the publication complained of was indeed libelous.[18] Declaring that malice is the most important

element of libel, it held that the same was present in the case because every defamatory publication prima facie implies malice on the part of the author

and publisher towards the person subject thereof.[19] The lower court gave no credence to Lim and petitioners argument that the publication was resorted

to in self-defense.

The trial court likewise disregarded the insulative effects of complainants status as a mediaman to the prosecution of the criminal libel charge. The

publication of a calumny even against public officers or candidates for public office, according to the trial court, is an offense most dangerous to the

people. It deserves punishment because the latter may be deceived thereby and reject the best and deserving citizens to their great injury.[20] It further

held that a private reputation is as constitutionally protected as the enjoyment of life, liberty and property such that anybody who attacks a persons

reputation by slanderous words or libelous publications is obliged to make full compensation for the damage done. [21]

On appeal, the CA modified the penalty imposed but it affirmed the RTCs finding of guilt. The CA likewise held that self-defense was

unavailing as a justification since the defendant should not go beyond explaining what was previously said of him. The appellate court asserted that the

purpose of self-defense in libel is to repair, minimize or remove the effect of the damage caused to him but it does not license the defendant to utter

blow-for-blow scurrilous language in return for what he received. Once the defendant hits back with equal or more scurrilous remarks unnecessary for

his defense, the retaliation becomes an independent act for which he may be liable. [22] For this reason, the CA refused to sanction the invocation of self-

defense.
Petitioner now comes before this Court praying for the reversal of the judgment against him. Petitioner contends inter alia that as editor-publisher of the

Sunday Post and as a member of the fourth estate, the lower courts finding of guilt against him constitutes an infringement of his constitutional right to

freedom of speech and of the press.[23] Petitioner likewise faults the lower courts failure to appreciate their invocation of self-defense.

For resolution of this Court, therefore, is the fundamental question of whether the publication subject matter of the instant case is indeed libelous. While

the findings and conclusions of the lower courts are rigid in their application of the strict letter of the law, the issue seems more complex than it appears

at first blush. The Court is compelled to delve deeper into the issue considering that libel principles formulated at one time or another have waxed and

waned through the years, in the constant ebb and flow of judicial review. [24] A change in the factual milieu of a case is apt to evoke a change in the

judgment applicable. Viewed in this context, the petition has merit and the judgment appealed from must be reversed.

Criminal Libel vis--vis the

Guarantee of Free Speech

Under our law, criminal libel is defined as a 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.[25] Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of

the person defamed; and, (d) existence of malice.[26]

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the landmark opinion of England's Star

Chamber in the Libelis Famosis case in 1603, two major propositions in the prosecution of defamatory remarks were established: first, that libel against a

public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. [27] These propositions

were due to the fact that the law of defamatory libel was developed under the common law to help government protect itself from criticism and to provide

an outlet for individuals to defend their honor and reputation so they would not resort to taking the law into their own hands.[28]

Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious libel in the then English colony of New

York. Zenger, the publisher of the New-York Weekly Journal, had been charged with seditious libel, for his papers consistent attacks against Colonel

William Cosby, the Royal Governor of New York. In his defense, Zengers counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby

were the right of every free-born subject to make when the matters so published can be supported with truth. [29] The jury, by acquitting Zenger,

acknowledged albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune from

criticism.[30]

The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the American democratic ideal. It has

been characterized as the first landmark in the tradition of a free press, then a somewhat radical notion that eventually evolved into the First

Amendment[31] in the American Bill of Rights and also proved an essential weapon in the war of words that led into the American War for

Independence.[32]

Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall pass no law abridging the

freedom of speech. The notorious Alien and Sedition Acts of 1798[33] made it a crime for any person who, by writing, speaking or printing, should

threaten an officer of the government with damage to his character, person, or estate. The law was passed at the insistence of President John Adams,
whose Federalist Party had held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the Jeffersonian

Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The Acts were never

challenged before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration. [34]

The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in 1800. In his stead was elected Thomas

Jefferson, a man who once famously opined, Were it left to me to decide whether we should have a government without newspapers, or newspapers

without a government, I should not hesitate a moment to prefer the latter.[35]

There is an important observation to be made about the quality of the American press during the time of Jefferson, one that is crucial to the

contemporaneous understanding of the freedom of expression clause at the time of its inception. The tenor of the public debate during that era was

hardly polite. About the impending election of Jefferson, the New England Courant predicted that murder, robbery, rape and adultery and incest will be

openly taught and practiced, the air will be rent with cries of distress, the soil soaked with blood and the nation black with crimes.[36] After Jefferson was

elected, rumors spread about his dalliances with his slave, Sally Hemmings, adding more fodder to his critics. The thirteen-year old William Cullen

Bryant, who would grow up to become a prominent poet and abolitionist, published the following doggerel: Thy countrys ruin and thy countrys shame!/

Go wretch! Resign the Presidential chair/Disclose thy secret measures foul and fair/ Go scan, philosophist, thy [Sallys] charms/And sink supinely in her

sable arms.[37]

Any comprehensive history of the American media during the first few decades of the existence of the United States would reveal a similar preference in

the media for such mad-dog rhetoric.[38] These observations are important in light of the misconception that freedom of expression extends only to polite,

temperate, or reasoned expression. The assailed decision of the RTC betrays such a perception, when it opined that the subject advertisement was

libelous because by the language used, it had passed from the bounds of playful gist, and intensive criticism into the region of scurrilous calumniation

and intemperate personalities.[39] Evidently, the First Amendment was designed to protect expression even at its most rambunctious and vitriolic form as

it had prevalently taken during the time the clause was enacted.

Nonetheless, juristic enforcement of the guarantee of freedom of expression was not demonstrably prominent in the United States during most of the

1800s. Notably, the prevalent philosophy then was that the Bill of Rights did not apply to the different federal states.[40] When the US Supreme Court was

confronted with substantial First Amendment issues in the late 1800s and early 1900s, it responded by repeatedly declining to protect free

speech.[41] The subsequent enactment of the due process clause in the Fourteenth Amendment eventually allowed the U.S. Supreme Court to accept,

in Gitlow v. New York[42] that the First Amendment was protected from impairment by the States, thus allowing for a more vigorous enforcement of the

freedom of expression clause in the twentieth century.[43]

The most important American ruling on libel, arguably from which modern libel law emerged [44] was New York Times v. Sullivan,[45] penned by the liberal

lion Justice William Brennan, Jr. In ascertaining whether the New York Times was liable for damages in a libel action, the U.S. Supreme Court had

acknowledged that the writing in question, an advertisement published in the paper[46] extolling the virtues of the civil rights movement, had contained

several factual inaccuracies in describing actions taken by Montgomery, Alabama officials on civil rights protesters.[47]The Court even concluded that at

most, there was a finding against the New York Times of negligence in failing to discover the misstatements against the news stories in the newspapers

own files.[48]

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment freedoms in the prosecution of criminal libel. Famously, the

precedent was established that a public official may not successfully sue for libel unless the official can prove actual malice, which was defined as with

knowledge that the statement was false or with reckless disregard as to

whether or not it was true.[49] By this standard, it was concluded that factual errors aside, actual malice was not proven to sustain the convictions for libel.

Moreover, leeway was allowed even if the challenged statements were factually erroneous if honestly made. [50]

Shortly after New York Times was promulgated, its principles were extended by the U.S. Supreme Court to criminal libel actions in Garrison v.

Louisiana.[51] The decision, also penned by Justice Brennan, commented on the marked decline in the common resort to criminal libel actions:

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct
from those secured by civil libel laws, and therefore should not be subject to the same limitations. At common law, truth was no
defense to criminal libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in
reputation by the libel, the speaker was still punishable since the remedy was designed to avert the possibility that the utterance
would provoke an enraged victim to a breach of peace . . .

[However], preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, has
substantially eroded the breach of peace justification for criminal libel laws. In fact, in earlier, more violent times, the civil remedy had
virtually pre-empted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual
desuetude.[52]

Then, the Court proceeded to consider whether the historical limitation of the defense of truth in criminal libel to utterances published with good motives

and for justifiable ends:[53]

. . . The good motives restriction incorporated in many state constitutions and statutes to reflect Alexander Hamiltons
unsuccessfully urged formula in People v. Croswell, liberalized the common-law rule denying any defense for truth. . . . In any
event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is
overborne by the larger public interest, secured by the Constitution, in the dissemination of truth. . . .

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of
expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate
on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even
if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.
. . .[54]

Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the Court made this important qualification

in Garrison:

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest
utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and
deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as
today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an
effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for
political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as
a tool is at once with odds with the premises of democratic government and with the orderly manner in which economic, social, or
political change is to be effected.[55]

Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v. Butts,[56] which expanded the actual malice test to cover not just

public officials, but also public figures. The U.S. Supreme Court, speaking through Chief Justice Warren, stated that:
 [D]ifferentiation between public figures and public officials and adoption of separate standards of proof for each have no
basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors
are blurred. . . . [I]t is plain that although they are not subject to the restraints of the political process, public figures, like public
officials, often play an influential role in ordering society. And surely as a class these public figures have as ready access as public
officials to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry
has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate
about their involvement in public issues and events is as crucial as it is in the case of public officials. The fact that they are not
amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it
means that public opinion may be the only instrument by which society can attempt to influence their conduct. [57]

The public figure concept was later qualified in the case of Gertz v. Welch, Inc.,[58] which held that a private person should be able to recover damages

without meeting the New York Times standard.[59] In doing so, the US Supreme Court recognized the legitimate state interest in compensating private

individuals for wrongful injury to reputation.[60]

The prominent American legal commentator, Cass Sunstein, has summarized the current American trend in libel law as follows:

[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a complex body of law: In the
highest, most-speech protective tier is libelous speech directed against a public figure. Government can allow libel plaintiffs to recover
damages as a result of such speech if and only if the speaker had actual malicethat is, the speaker must have known that the speech
was false, or he must have been recklessly indifferent to its truth or falsity. This standard means that the speaker is protected against
libel suits unless he knew that he was lying or he was truly foolish to think that he was telling the truth. A person counts as a public
figure (1) if he is a public official in the sense that he works for the government, (2) if, while not employed by government, he otherwise
has pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular controversy in order to influence
its resolution. Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from recovering against a
magazine that portrays him as having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False
speech directed against public figures is thus protected from libel actions except in quite extreme circumstances. [61]

It may also be noted that this heightened degree of protection afforded to free expression to comment on public figures or matters against criminal

prosecution for libel has also gained a foothold in Europe. Article 10 of the European Convention on Human Rights and Fundamental Freedoms provides

that [e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas

without interference by public authority and regardless of frontiers. [62] The European Court of Human Rights applied this provision in Lingens v.

Austria,[63] in ruling that the Republic of Austria was liable to pay monetary damages as just satisfaction to a journalist who was found guilty for

defamation under the Austrian Criminal Code.[64] The European Court noted:

[Article 10] is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no democratic society. . . . These principles are of particular importance as far as the press
is concerned. Whilst the press must not overstep the bounds set, inter alia, for the protection of the reputation of others, it is
nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not
only does the press have the task of imparting such information and ideas: the public also has the right to receive them. . . .[65]

The international trend in diminishing the scope, if not the viability, of criminal libel prosecutions is clear. Most pertinently, it is also evident in our own

acceptance in this jurisdiction of the principles applied by the U.S. Supreme Court in cases such as New York Times and Garrison.

Particularly, this Court has accepted the proposition that the actual malice standard governs the prosecution of criminal libel cases concerning public

figures. In Adiong v. COMELEC,[66] the Court cited New York Times in noting that [w]e have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public

officials.[67] The Court was even more explicit in its affirmation of New York Times in Vasquez v. Court of Appeals.[68]Speaking through Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public
official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this
Court has cited with approval in several of its own decisions.[ [69]] This is the rule of "actual malice." In this case, the prosecution
failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their
falsity or with reckless disregard of whether they were false or not. [70]

The Court has likewise extended the actual malice rule to apply not only to public officials, but also to public

figures. In Ayer Productions Pty. Ltd. v. Capulong,[71] the Court cited with approval the following definition of a public figure propounded by an American

textbook on torts:

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling
which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in
other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list
is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers,
an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived
at a position where public attention is focused upon him as a person. [72]

Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramatized account of the 1986 EDSA Revolution.

Nonetheless, its definition of a public figure is important to this case, as it clearly establishes that even non-governmental officials are considered public

figures. In fact, the definition propounded in Ayer was expressly applied by the Court in Borjal v. Court of Appeals[73] in ascertaining whether the

complainant therein was a public figure, thus warranting the application of the actual malice test. [74]

We considered the following proposition as settled in this jurisdiction: that in order to justify a conviction for criminal libel against a public

figure, it must be established beyond reasonable doubt that the libelous statements were made or published with actual malice, meaning knowledge that

the statement was false or with reckless disregard as to whether or not it was true. As applied to the present petition, there are two main determinants:

whether complainant is a public figure, and assuming that he is, whether the publication of the subject advertisement was made with actual malice.

Sadly, the RTC and the CA failed to duly consider both propositions.

Complainant Is a Public Figure

There should be little controversy in holding that complainant is a public figure. He is a broadcast journalist hosting two radio programs aired over a large

portion of the Visayas and Mindanao. Measured against the definition provided in Ayer, complainant would definitely qualify as a public figure.

Complainant even asserted before the trial court that his broadcast was listened to widely, hence, his notoriety is unquestionable.

Complainants standing as a public figure is further militated by the contextual circumstances of the case. The newspaper in question, the Sunday Post,

is particularly in circulation in the areas where complainants broadcasts were aired. Certainly, it cannot be denied that the target audience of the

newspaper were the same persons who may have listened regularly to the complainants broadcast. Even if the sphere of complainants renown is limited

in geography, it is in the same plane as the circulation of the offending newspaper. The extent of complainants ability to influence hearts and minds

through his broadcasts need not be established, only that he has such capacity and willingness to exert an influence. Complainants volition to practice

the radio broadcasting profession necessarily thrusts him in the public sphere.

Actual Malice Not Proven

As it has been established that complainant was a public figure, it was incumbent upon the prosecution to prove actual malice on the part of Lim and

petitioner when the latter published the article subject matter of the complaint. Set otherwise, the prosecution must have established beyond reasonable

doubt that the defendants knew the statements in the advertisement was false or nonetheless proceeded with reckless disregard as to publish it whether

or not it was true.

It should thus proceed that if the statements made against the public figure are essentially true, then no conviction for libel can be had. Any statement

that does not contain a provably false factual connotation will receive full constitutional protection. [75] An examination of the records of this case showed

that the prcis of information contained in the questioned publication were actually true. Thus, complainant himself testified:

Q But is it true that these cases published in Exhibit F-1 are actually existing or previous cases?

A At the time of the publication those cases were terminated, long terminated.

Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10, 1979 against you?

FISCAL ROCAMORA:

Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer)

Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10, 1979, against you?

A I really do not know about that accusation.

COURT:

Proceed.

ATTY. FLORIDO:

Q When you came across the publication, did you check if in fact there was a case docketed with that number against you? Did
you check?

A I did not.

Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case No. 17984-R filed July 21, 1982
where the complaints were Pio Go and Mrs. Rosalita Roldan?
A: Yes.

Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious Physical Injuries, date filed April
28, 1980 which in this publication appears provisionally dismissed April 14, 1991?

A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it is true that these cases were filed
against you?

A: As far as I know, in fact, I never received any subpoena or anything about this case.

Q: Yes, but did you upon receipt of Exhibit F-1, did you inquire from the Court whether it is true that these cases had been
recorded as filed against you?

A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether that case exist?

A: Yes.

COURT:

Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was provisionally dismissed with reference to 14843-R for Serious Physical
Injuries. You made inquiries?

A: Yes.
Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a case of Malicious Mischief
against you?

A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?

A: Yes.

Q: So, there is nothing false so far as Exhibit F-1?

A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. Not too long ago, I received the following newspaper clippings courtesy
of the Cebu City concerned citizens. The caption story below tells all. If you know who the businessman alluded to in the
caption. Please do tells me and then, there is a photograph a reprint from Sun Star publication. Do you confirm that?[76]

xxx

Q: But is it true that you were arrested per this photograph and I quote. In a plush uptown hotel was disturbed by operatives (right)
of the Cebu City Police under Police Lieutenant Col. Eduardo Ricardo just to serve on the former a warrant of arrest
issued by the Cebu RTC Judge German Lee relative to the suit filed by Apocemco against a businessman. Is it true that
you were arrested?
A: Yes.

Q: So this photograph is genuine photograph?

A: Yes.

Q: And you claimed that you have a good reputation and that good reputation had been soiled by the accused in this case. Let me
ask you concerning your reputation then. Is it not a fact that aside from this record of criminal cases appearing in Exhibit
F-1, you have also been at one time or another been accused of several other criminal cases both in and out of the City
of Cebu?

A: Yes, before, 10 years, 15 years ago.

Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per certificate which we marked as Exhibit
2. Criminal Case Nos. 14843-R for Serious Physical Injuries, Torralba Cirse Choy; 17984-R, for Estafa; Torralba Cirse R.
R-43035 for Malicious Mischief. You will confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse R.
Torralba mentioned in this certificate refer to your person?

A: Yes.

Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City, you also have 1, 2, 3, 4, 5, 6, 7, 8, 9
criminal cases before the Regional Trial Court of Cebu per certificate that I marked as Exhibit 3. Is that correct?

A: Yes, but all those cases have already been either acquitted or dismissed. I will present the certification.

Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5 cases for Estafa, the 6 th case for
issuance of a bouncing check, the 7th case is a case for issuance of a bouncing check; and the 9th is also for issuance of
a bouncing check. You will confirm that?

....

COURT: (to witness)

 Q: What happened to those cases?

A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and fortunately, your Honor, I do not have
any conviction.[77]

From the foregoing, it is clear that there was nothing untruthful about what was published in the Sunday Post. The criminal cases listed in the

advertisement as pending against the complainant had indeed been filed. It may have been inconvenient for the complainant that these matters may

have been divulged, yet such information hardly falls within any realm of privacy complainant could invoke, since the pendency of these criminal charges

are actually matters of public record.

The information, moreover, went into the very character and integrity of complainant to which his listening public has a very legitimate

interest. Complainant hosts a public affairs program, one which he himself claimed was imbued with public character since it deals with corruptions in

government, corruptions by public officials, irregularities in government in comrades. [78] By entering into this line of work, complainant in effect gave the

public a legitimate interest in his life. He likewise gave them a stake in finding out if he himself had the integrity and character to have the right to criticize

others for their conduct.

In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised Penal Code, which provides that 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. We hold that this

provision, as applied to public figures complaining of criminal libel, must be construed in light of the constitutional guarantee of free expression, and this

Courts precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous.

The provision itself allows for such leeway, accepting as a defense good intention and justifiable motive. The exercise of free expression, and its

concordant assurance of commentary on public affairs and public figures, certainly qualify as justifiable motive, if not good intention.

It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive color or innuendo. Certainly, persons in

possession of truthful facts are not obliged to present the same in bland fashion. These true facts may be utilized to convince the listener/reader against

a particular position, or to even dissuade one against accepting the credibility of a public figure. Dry facts, by themselves, are hardly stirring. It is the

commentary thereupon that usually animates the discourse which is encouraged by the Constitution as integral to the democratic way of life. This is

replete in many components of our daily life, such as political addresses, televised debates, and even commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even expression in its most

unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist interpretation of the free speech clause, if only because it

prevents the proliferation of untruths which if unrefuted,

would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate might be muted due to the reckless

enforcement of libel laws, truth has been sanctioned as a defense, much more in the case when the statements in question address public issues or

involve public figures.

In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York Times, has even gone so far as

acknowledging:
 Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith
and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the
choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing
Corp. v. Noel we held

A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to court by one
group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing
liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed
in the absence of proof of "actual malice" on the part of the person making the libelous statement.[79]

To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed by this Court to have been done with actual

malice. Aside from the fact that the information contained in said publication was true, the intention to let the public know the character of their radio

commentator can at best be subsumed under the mantle of having been done with good motives and for justifiable ends. The advertisement in question

falls squarely within the bounds of constitutionally protected expression under Section 4, Article III, and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals dated 29 July

1996 and 3 October 1996, respectively, in CA G.R. CR No. 16413 are REVERSED and SET ASIDE insofar as they affect petitioner. The Decision of

the Regional Trial Court of Cebu City, promulgated on 17 May 1994, as regards petitioner is likewise REVERSED and SET ASIDE and petitioner is

ACQUITTED of the charge of libel therein. No costs.

SO ORDERED.

CRISTINELLI S. FERMIN, G.R. No. 157643

Petitioner,
Present:

AUSTRIA-MARTINEZ, J.,

Acting Chairperson,

TINGA,*
- versus -
CHICO-NAZARIO,

NACHURA, and

REYES, JJ.

Promulgated:

PEOPLE OF THE PHILIPPINES,

March 28, 2008
Respondent.

x------------------------------------------------------------------------------------x
 DECISION

NACHURA, J.:

Before us is a petition[1] for review on certiorari, under Rule 45 of the Rules of Court, of the Decision[2] dated September 3, 2002 and the

Resolution[3] dated March 24, 2003of the Court of Appeals (CA) in CA-G.R. CR No. 20890 entitled People of the Philippines v. Cristenelli S. Fermin and

Bogs C. Tugas.

On complaint of spouses Annabelle Rama Gutierrez and Eduardo (Eddie) Gutierrez, two (2) criminal informations for libel [4] were filed against

Cristinelli[5] S. Fermin and Bogs C. Tugas before the Regional Trial Court (RTC) of Quezon City, Branch 218. Except for the name of the

complainant,[6] the informations uniformly read

That on or about the 14th day of June, 1995 in Quezon City, Philippines, the above-named accused CRISTENELLI SALAZAR
FERMIN, publisher, and BOGS C. TUGAS, Editor-in-Chief of Gossip Tabloid with offices located at 68-A Magnolia Tulip St., Roxas
District, Quezon City, and circulated in Quezon City and other parts of Metro Manila and the whole country, conspiring together,
confederating with and mutually helping each other, publicly and acting with malice, did then and there willfully, unlawfully and
feloniously print and circulate in the headline and lead story of the said GOSSIP TABLOID issue of June 14, 1995 the following
material, to wit:

MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING
ASUNTO DOON SI ANNABELLE

IMPOSIBLENG NASA AMERIKA NGAYON SI ANNABELLE DAHIL SA KALAT DIN ANG ASUNTO NILA DUN,
BUKOD PA SA NAPAKARAMING PINOY NA HUMAHANTING SA KANILA MAS MALAKING PROBLEMA
ANG KAILANGAN NIYANG HARAPIN SA STATES DAHIL SA PERANG NADISPALKO NILA, NAGHAHANAP
LANG NG SAKIT NG KATAWAN SI ANNABELLE KUNG SA STATES NGA NIYA MAIISIPANG PUMUNTA
NGAYON PARA LANG TAKASAN NIYA SI LIGAYA SANTOS AT ANG SINTENSIYA SA KANYA

when in truth and in fact, the accused very well knew that the same are entirely false and untrue but were publicly made for no other
purpose than to expose said ANNABELLE RAMA GUTIERREZ to humiliation and disgrace, as it depicts her to be a fugitive from
justice and a swindler, thereby causing dishonor, discredit and contempt upon the person of the offended party, to the damage and
prejudice of the said ANNABELLE RAMA GUTIERREZ.

CONTRARY TO LAW.[7]

Upon arraignment, petitioner and co-accused Bogs C. Tugas (Tugas) both pleaded not guilty. Thereafter, a joint trial ensued.

After trial on the merits, the RTC of Quezon City, Branch 218, in its Joint Decision [8] dated January 27, 1997, found petitioner and Tugas guilty of

libel. The dispositive portion of the Joint Decision reads

 WHEREFORE, prosecution having established the guilt of the accused, judgment is hereby rendered finding CRISTENELLI S.
FERMIN and BOGS C. TUGAS GUILTY beyond reasonable doubt, of libel, punishable under Art. 355 of the Revised Penal Code
and sentences them to an indeterminate penalty of three (3) months and eleven (11) days of arresto mayor, as minimum, to one (1)
year, eight (8) months and twenty-one (21) days of prision correccional, as maximum, for each case.

Likewise, accused Cristenelli S. Fermin and Bogs Tugas are sentenced to pay jointly and solidarily:

a) moral damages of:

1. P500,000.00 to Annabelle Rama in Criminal Case No. Q-95-62823; and

2. P500,000.00 to Eddie Gutierrez in Criminal Case No. Q-95-62824;

b) attorneys fees of P50,000.00.

SO ORDERED.[9]

Aggrieved, petitioner and Tugas appealed to the CA. The appellate court, in its Decision dated September 3, 2002, affirmed the conviction of petitioner,

but acquitted Tugas on account of non-participation in the publication of the libelous article. The fallo of the Decision reads

WHEREFORE, judgment is hereby rendered as follows:

1. The appealed decision as against the accused-appellant BOGS C. TUGAS is REVERSED and SET ASIDE, and
another is entered ACQUITTING him of the crime charged and ABSOLVING him from any civil liability; and

2. The same appealed decision as against accused-appellant CRISTENELLI S. FERMIN is AFFIRMED, with the
MODIFICATION that the award of moral damages is REDUCED to P300,000.00 for EACH offended party, and the
award of attorneys fees is DELETED.

Costs against the appellant FERMIN.

SO ORDERED.[10]

The CA denied petitioners motion for reconsideration for lack of merit in the Resolution dated March 24, 2003. Hence, this petition, raising the following

arguments:

I.

THE RULING IN U.S. VS. TAYLOR, PEOPLE VS. TOPACIO AND SANTIAGO, U.S. VS. MADRIGAL AND U.S. VS. SANTOS AND
THE HOLDING IN U.S. VS. OCAMPO AS CLARIFIED BY THE COURT OF APPEALS IN PEOPLE VS. BELTRAN AND SOLIVEN
REQUIRING KNOWLEDGE, PARTICIPATION AND COMPLICITY BY THE PUBLISHER IN THE PREPARATION AND APPROVAL
OF THE LIBELOUS ARTICLE TO SUSTAIN THE LATTERS CONVICTION FOR LIBEL ARE APPLICABLE IN THE PRESENT
CASE.
 II.

ART. 360 OF THE REVISED PENAL CODE WHICH MAKES A PUBLISHER LIABLE FOR LIBEL TO THE SAME EXTENT AS IF
HE WERE THE AUTHOR THEREOF MERELY CREATES A DISPUTABLE PRESUMPTION WHICH MAY BE REBUTTED BY
CONTRARY EVIDENCE.

III.

THE QUESTIONED ARTICLE IS NOT LIBELOUS.

IV.

THE QUESTIONED ARTICLE IS PROTECTED BY THE MANTLE OF THE FREEDOM OF THE PRESS AND IS WITHIN THE
REALM OF FAIR AND HONEST COMMENT.[11]

Being interrelated, we shall discuss the first and the second issues jointly, then the third and the fourth issues together.

Petitioner posits that, to sustain a conviction for libel under Article 360 of the Revised Penal Code, it is mandatory that the publisher knowingly

participated in or consented to the preparation and publication of the libelous article. This principle is, allegedly, based on our ruling

in U.S. v. Taylor,[12] People v. Topacio and Santiago,[13] U.S. v. Madrigal,[14]U.S. v. Abad Santos,[15] and U.S. v. Ocampo,[16] as purportedly clarified

in People v. Beltran and Soliven.[17] She submits that these cases were applied by the CA in acquitting her co-accused Tugas, and being similarly

situated with him, she is also entitled to an acquittal. She claims that she had adduced ample evidence to show that she had no hand in the preparation

and publication of the offending article, nor in the review, editing, examination, and approval of the articles published in Gossip Tabloid.

The arguments are too simplistic and the cited jurisprudence are either misplaced or, in fact, damning.

Foremost, U.S. v. Madrigal and U.S. v. Abad Santos are not applicable to the present case. U.S. v. Madrigal pertains to a criminal prosecution under

Section 30 of Act No. 1519 for fraudulently representing the weight or measure of anything to be greater or less than it is, whereas U.S. v. Abad

Santos refers to criminal responsibility under the Internal Revenue Law (Act. No. 2339).

The other cases are more in point, but they serve to reinforce the conviction of, rather than absolve, petitioner.

In U.S. v. Taylor, the accused was indicted under Section 6 of Act No. 277 which provides that: Every author, editor or proprietor of any book,

newspaper, or serial publication is chargeable with the publication of any words contained in any part of said book or number of each newspaper or

serial as fully as if he were the author of the same. However, proof adduced during the trial showed that accused was the manager of the publication

without the corresponding evidence that, as such, he was directly responsible for the writing, editing, or publishing of the matter contained in the said

libelous article.[18]
In People v. Topacio and Santiago, reference was made to the Spanish text of Article 360 of the Revised Penal Code which includes the

verb publicar. Thus, it was held that Article 360 includes not only the author or the person who causes the libelous matter to be published, but also the

person who prints or publishes it.

Based on these cases, therefore, proof of knowledge of and participation in the publication of the offending article is not required, if the accused has

been specifically identified as author, editor, or proprietor or printer/publisher of the publication, as petitioner and Tugas are in this case.

The rationale for the criminal culpability of those persons enumerated in Article 360 of the Revised Penal Code [19] was enunciated in U.S. v.

Ocampo,[20] to wit:

According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous
matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With regard to
a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any
connection with its publication are liable as publishers.

xxxx

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of
the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783):

The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility solely
on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a newspaper,
such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication.

The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his
paper; and it should be no defense that the publication was made without his knowledge or consent, x x x

One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or
employees whom he selects and controls may be said to cause to be published what actually appears, and should be held
responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an
agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the
publisher; x x x.

We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or consent of its
proprietor or manager is no defense to a criminal prosecution against such proprietor or manager.

In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in the
criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the libel,
and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication until it
was pointed out to him and that an apology and retraction were afterwards published in the same paper, gave him no ground for
exception. In this same case, Mr. Justice Colt, speaking for the court, said:

It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use
reasonable caution in the conduct of his business that no libels be published. (Whartons Criminal Law, secs. 1627, 1649; 1 Bishops
Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)

The above doctrine is also the doctrine established by the English courts. In the case of Rex vs. Walter (3 Esp., 21) Lord Kenyon
said that he was clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the acts of
his servants or agents for misconduct in the management of the paper.

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.

Lofft, an English author, in his work on Libel and Slander, said:

 An information for libel will lie against the publisher of a paper, although he did not know of its being put into the paper and stopped
the sale as soon as he discovered it.

In the case of People vs. Clay (86 Ill., 147) the court held that

A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and criminally, and his
liability is shared by the agent and all others who aid in publishing it.

It is worthy to note that petitioner was not only the publisher, as shown by the editorial box of Gossip Tabloid,[21] but also its president and chairperson as

she herself admitted on the witness stand.[22] She also testified that she handled the business aspect of the publication, and assigns editors to take

charge of everything.[23] Obviously, petitioner had full control over the publication of articles in the said tabloid. Her excuse of lack of knowledge, consent,

or participation in the release of the libelous article fails to persuade.Following our ruling in Ocampo, petitioners criminal guilt should be affirmed,

whether or not she had actual knowledge and participation, having furnished the means of carrying on the publication of the article purportedly prepared

by the members of the Gossip Reportorial Team, who were employees under her control and supervision.

Petitioner argues that Ocampo has been clarified by the CA in People v. Beltran and Soliven such that Maximo V. Soliven, as publisher of The Philippine

Star, was acquitted by the appellate court in view of the lack of evidence that he knew and approved the article written by Luis D. Beltran about then

President Corazon C. Aquino in the newspapers October 12, 1987 issue. Petitioner submits that People v. Beltran and Soliven serves as a guide to this

Court regarding the criminal liability of the publisher of the newspaper where a libelous article is published. Put differently, it appears that petitioner

wants this Court to follow the CA decision and adopt it as judicial precedent under the principle of stare decisis.

The doctrine of stare decisis, embodied in Article 8[24] of the Civil Code, is enunciated, thus:

The doctrine of stare decisis enjoins adherence to judicial precedents. It requires courts in a country to follow the rule
established in a decision of the Supreme Court thereof. That decision becomes a judicial precedent to be followed in
subsequent cases by all courts in the land. The doctrine of stare decisis is based on the principle that once a question of law has
been examined and decided, it should be deemed settled and closed to further argument. [25] (Emphasis supplied)

Unfortunately, the Beltran decision attained finality at the level of the CA. Thus, if the CA seemingly made a new pronouncement regarding the

criminal liability of a publisher under Article 360 of the Revised Penal Code, that ruling cannot bind this Court unless we purposely adopt the same. Be

that as it may, we find no compelling reason to revisit U.S. v. Ocampo; to modify it would amount to judicial legislation. Article 360 is clear and

unambiguous, and to apply People v. Beltran and Soliven, which requires specific knowledge, participation, and approval on the part of the publisher to

be liable for the publication of a libelous article, would be reading into the law an additional requirement that was not intended by it.

In the same vein, we note that the CA erred in acquitting Tugas. Tugas cannot feign lack of participation in the publication of the questioned

article as was evident from his and petitioners Joint Counter-Affidavit,[26] and as gleaned from his testimony before the trial court, to wit:

WITNESS: As editor-in-chief, I have no participation in the writing of the questioned article and my only participation in the
publication is the handling of the physical lay-outing, indication and allocation of type-size of the body of the
article, before the same was printed and published in GOSSIP Tabloid.
 Q: You do not deny the statements in this publication as executed by you in the counter-affidavit and sworn in before the City
Prosecutor, is this correct?

A: Yes, that is correct.

ATTY. ALENTAJAN:

That is all for the witness, your Honor.

COURT: Do we get it right from you, if you were acting as you were, you will not allow the said publication of this same article or
same stories?

A: If I were, if I was physically present, honestly I will because if you can see the article, your Honor, it is according to our source, it
is not a direct comment.

COURT: So whether you are there or not, [the] same article leading to them (sic) will still find its way to come out?

A: Yes, your honor.[27]

Tugas testimony, in fact, confirms his actual participation in the preparation and publication of the controversial article and his approval thereof as it was

written. Moreover, his alibi, which was considered meritorious by the CA, that he was confined at the Mother of Perpetual Help Clinic in Angeles City, is

unavailing, in view of the testimony of his attending physician that Tugas medical condition did not prevent him from performing his work, thus

Q: How would you describe the condition of the patient on June 13, 1995?

A: He is in stable condition.

Q: You said he was in severe pain, from your opinion, was that condition sufficient to enable him to work?

A: Yes, in my opinion.[28]

Q: You said your impression of the patient was urethral colic and this was caused by spasm?

A: Yes, sir.

Q: When you say spasm, it is not sustained, it comes every now and then and [intermittently], it is not sustained?

A: Yes, sir.

Q: Now you said he was in stable condition?

A: Yes, sir.

Q: That means that his ailment is not life-threatening?

A: Correct.
Q: In fact, visitors were allowed to see him?

A: Yes, sir.

Q: He can also write?

A: Yes, sir.

Q: He was allowed to [receive] friends?

A: Yes, sir.

Q: According to you, he was able to work also, he is not totally incapacitated in performing certain chores in the hospital room?

A: No, sir.

Q: Now, prior to 7:10 oclock in the morning of June 13, 1995, you did not see Mr. Bogs Tugas?

A: I saw him, he was admitted at 7:00 oclock but I saw him before.

Q: How long before 7:10 were you able to see him?

A: That is about 2 hours.

Q: About 5:00 oclock in the morning?

A: Yes, sir.

Q: Who was his companion when you saw him?

A: He was boarding in my place.

Q: So, you brought him to the hospital?

A: Both of us went to the hospital.

Q: Which boarding house are you referring [to]? In Angeles City?

A: Yes, sir.

Q: Do you know that Mr. Bogs Tugas works here in Quezon City as editor-in-chief of a newspaper tabloid?

A: Yes, sir.

Q: And some of his work is done in your boarding house?

A: I do not know about it.

Q: How did you know that he is working on his paper works in Quezon City? Did you see him do that?

A: I only know he goes to Manila everyday.

Q: In your boarding house, you saw him read and write?

A: Probably yes.[29]
 But, of course, we cannot reinstate the ruling of the trial court convicting Bogs Tugas because with his acquittal by the CA, we would run afoul

of his constitutional right against double jeopardy.

Anent the third and fourth issues, petitioner argues that the subject article in the June 14, 1995 issue of Gossip Tabloid is not libelous, is

covered by the mantle of press freedom, and is merely in the nature of a fair and honest comment. We disagree.

The banner headlines of the offending article read:

KUNG TOTOONG NAKATAKAS NA SI ANNABELLE RAMA, IMPOSIBLENG SA STATES SIYA NAGPUNTA!

MAS MALAKING HALAGA ANG NADISPALKO NILA SA STATES, MAY MGA NAIWAN DING ASUNTO DUN SI ANNABELLE!

On the first page of the same issue of Gossip Tabloid, written in smaller but bold letters, are:

HINDI SIYA MAKAKAPUNTA SA AMERIKA DAHIL NAPAKARAMI RIN NIYANG ASUNTONG INIWAN DUN NOON PA,
NAKAPAG-ABROAD MAN SIYA, E, PIHADONG HINDI SIYA SA AMERIKA NAGTULOY, SA AMERIKA PA KAYA SIYA
MAGTATAGO, E, ILANG TAON NA RIN SIYANG INAABANGAN DUN NG NGA KABABAYAN NATING NILOKO NIYA, IN ONE
WAY OR ANOTHER?... NAAALALA PA BA NINYO YUNG MGA MAMAHALING KALDERO NA IBINEBENTA NILA NOON SA
AMERIKA, DUN SILA NAGKAPROBLEMA, MILYON-MILYON ANG INVOLVED, KAYA KINAILANGAN NILANG UMUWI SA
PILIPINAS NOON!

The rest of the article, which continued to the entire second page of the tabloid, follows

Mainit na pinag-uusapan ngayon ang ibat ibang posibilidad na maaaring gawin ni Annabelle Rama Gutierrez para lang hindi
matuloy ang pag-aresto at pagkukulong sa kanya ng mga awtoridad kaugnay ng sintensiyang ipinapataw sa kanya ni Manila-RTC
Judge Rodolfo Palattao.

Mula noong June 8, nabatid ng Gossip Tabloid, ay wala pang sinumang nakapagtuturo kung saan talaga naroon ang ina ni Ruffa
Gutierrez na hindi pinayagang makapagpiyansa ng Branch 33 para sa pansamantala niyang kalayaan.

May mga nagpapalagay na sa pamamagitan ng tinatawag na back-door exit, ang pag-alis ng bansa sa paraang hindi na kailangan
pang dumaan sa NAIA, ay nakaalis na si Annabelle noon pang nakaraang Biyernes, June 9, patungong Amerika.

Pero isang mapagkakatiwalaang source ng Gossip Tabloid ang nagsabing napaka-imposibleng sa Amerika nagtungo si Annabelle
dahil doon man ay may mga nakahanda nang awtoridad na handang magkulong kay Annabelle, sakaling mapatunayang naroon
nga siya.

Hindi siya makapupunta sa Amerika dahil napakarami rin niyang asuntong iniwan doon noon pa!

Nag-abroad man siya, e pihadong hindi siya sa Amerika nagtuloy dahil nakaabang na rin ang sangkatutak niyang maniningil dun
ngayon!
Sa Amerika pa kaya siya magtatago, samantalang ilang taon na rin siyang inaabangan dun ng mga kababayan nating niloko niya, in
one way or another? simula ng source ng Gossip Tabloid.

Niliwanag ng naturang source na ang dahilan ng biglaang pag-uwi ng pamilya Gutierrez sa bansa ilang taon na ang nakararaan ay
may kinalaman sa malaking halagang hindi nabayaran nina Eddie at Annabelle sa ilang kababayan natin sa Amerika.

Naaalala pa ba ninyo yung mga kalderong ibinebenta noon nina Eddie at Annabelle sa States?

Mga mamahaling kaldero yun, hindi basta-basta kaldero ang ibinebenta nila dun, kaya talagang ang ganda-ganda na sana ng
buhay nilang mag-anak dun hanggang sa dumating yung point na sinisingil na sila nung mismong kompanya ng kaldero!

Malaki ang halagang involved, milyon-milyon, kaya nung kinasuhan na sila, e kinailangan nilang umalis sa Amerika para bumalik na
dito.

Isa si Bert Leroy, Jr. sa mga Pilipinong nagkaroon ng malaking problema kina Eddie at Annabelle, alam ba nyo yun?

Ang ganda-ganda ng samahan nila nung una sa Amerika, yumaman sila nang dahil sa mga mamahaling kaldero na ibinebenta nila,
kaso, sumabit sina Eddie at Annabelle dun sa mismong company na pinagkukunan nila ng produkto!

Bukod sa napakarami na nilang isinabit na Pinoy sa Amerika dahil sa mga kalderong yun, e sumabit pa sila nang malaking halaga
sa mismong manufacturer nung mga ibinebenta nilang mamahaling kaldero!

Yun ang dahilan kung bakit bigla-biglang umuwi sa Pilipinas ang pamilya ni Eddie!

Ang ikinakatwiran nilang mag-asawa noon, e gusto raw kasi nilang lumaking Pilipinong-Pilipino ang kanilang mga anak, pero ang
totoo, e, napakalaki ng problemang iniwan nila sa Amerika! mahabang simula ng source ng Gossip Tabloid.

Masamang-masama diumano ang loob ng mga Pilipinong kinatalo roon nina Eddie at Annabelle, lalo na si Annabelle, na bukod sa
mataray na ay may kayabangan pa.

Dati nang ganyan si Annabelle! Mataray siya na wala sa lugar. Nung nasa Amerika pa silang mag-anak, e, yun din ang madalas
nilang pag-awayan dun ni Eddie!

Madalas silang magkagalit, kaya si Eddie, para lang makapagpalipas ng mga sama niya ng loob, e, dun nag-i-stay sa bahay ng
mga kaibigan niyang Pinoy!

Grabe ang naging problema nila dun, kaya wala silang choice that time kung di ang umuwi na lang sa Pilipinas!

Ang halagang involved sa pagbebenta nila ng kaldero, e, hindi basta-basta, milyunan yon!

Kaso yung pinagbebentahan nila, yung halagang dapat sana, e, ibigay nila sa kompanya dahil porsiyentuhan lang naman sila dun,
nagastos nila!

Nawala ang pera, at ang balita nga sa States, e, si Annabelle ang dahilan kung bakit nalubog sila noon sa utang sa States!

Nag-casino pala si Annabelle! Grabe raw kung magpatalo siya, kaya pati yung kinita nila sa pagbebenta ng mamahaling kaldero, e,
natunaw! sabi uli ng source ng Gossip Tabloid.
 Maraming Pilipino ang sinabitan doon ng mag-asawa, ayon pa sa source ng Gossip Tabloid, kaya ngayong may asunto naman si
Annabelle dito sa Pilipinas ay napaka-imposibleng sa Amerika pa rin siya tatakbo.

Paano siya magpupunta dun para tuluyan nang manirahan, e, ang dami-dami ring Pinoy na naghihintay sa kanya dun para maningil
sa kanya?

Alam nyo ba, bukod sa galit na galit na sa kanila ang mga Pinoy na nandun, e, may mga nakaabang na ring asunto para kay
Annabelle.

So, malabong sa Amerika pa siya tumuloy ngayong napapabalitang nasa abroad siya dahil sa mga naghihintay na kaso sa kanya
dun.

Ang alam namin, e, sa Europe nagbabalak pumunta ang pamilya ni Eddie.

Di bat ilang beses nang nagpapabalik-balik dun sina Ruffa. Noon pa, e, pinag-aralan na nina Eddie at Annabelle ang posibilidad ng
mga gagawin nila!

Alam nila na hindi sila puwedeng mag-stay sa States dahil kalat din ang asunto nila dun, bukod pa sa napakaraming Pinoy na
huma-hunting sa kanila!

Kaya kung totoong nakalusot na nga si Annabelle ngayon para makatakas siya sa pagkakulong, imposibleng sa States siya
nagpunta!

Mas malaking problema ang kailangan niyang harapin sa States dahil sa perang nadispalko nila, bukod pa sa asuntong iniwan
nilang nakatiwangwang dun!

Naghahanap ng sakit ng katawan si Annabelle kung sa States nga niya maisipang pumunta ngayon para lang malusutan si Ligaya
Santos at ang sintensiya sa kanya ni Judge Palattao! madiin pang pahayag ng mapagkakatiwalaang source ng Gossip Tabloid.[30]

A libel is defined as a 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.[31] In

determining whether a statement is defamatory, the words used are to be construed in their entirety and should be taken in their plain and ordinary

meaning as they would naturally be understood by persons reading them, unless it appears that they were used and understood in another sense.[32]

To say that the article, in its entirety, is not libelous disturbs ones sensibilities; it would certainly prick ones conscience. There is evident

imputation of the crime of malversation (that the complainants converted for their personal use the money paid to them by fellow Filipinos in America in

their business of distributing high-end cookware); of vices or defects for being fugitives from the law (that complainants and their family returned to the

Philippines to evade prosecution in America); and of being a wastrel (that Annabelle Rama Gutierrez lost the earnings from their business through

irresponsible gambling in casinos). The attribution was made publicly, considering that Gossip Tabloidhad a nationwide circulation. The victims were

identified and identifiable. More importantly, the article reeks of malice, as it tends to cause the dishonor, discredit, or contempt of the complainants.

Petitioner claims that there was no malice on her part because, allegedly, the article was merely a fair and honest comment on the fact that

Annabelle Rama Gutierrez was issued a warrant of arrest for her conviction for estafa before then Judge Palattaos court. She even cited as proof of her

lack of malice the purported absence of any ill will against complainants, as shown by the article she wrote about complainants daughter Sharmaine

Ruffa Gutierrez in the June 15, 1995 issue of the same tabloid where she expressed her sympathy and admiration for the latter.
 Notably, however, the complainants successfully refuted the imputations during the trial. Complainants proved that they could return anytime

to the United States of America after the publication of the article,[33] and that they remained on good terms with the manufacturing company of the

cookware.[34] To the contrary, both petitioner and Tugas failed to adduce evidence to show the truth of the allegations in the article despite the

opportunity to do so.

Further worthy of mention is the admission of petitioner before the trial court that she had very close association with then Congressman

Golez and mayoralty candidate Joey Marquez, and that she would use her skills as a writer to campaign for them. Complainant Eddie Gutierrez ran

against then incumbent Golez for the congressional seat in Paraaque City. Petitioner testified in this wise

Q: When you acted as writer during the campaign, as you said, for Joey Marquez and Golez, of course you did not give your
services for free to these candidates, were you paid?

A: I was not paid, Sir.

Q: You just wanted to help them, am I correct?

A: Yes, because they are my friends, Sir.

Q: And you wanted them to win the election, thru your being a writer, is that correct?

A: Yes, Sir.

Q: You were campaigning hard for Golez and Marquez, right?

A: Right, Sir.

Q: When you say hard, you wanted your candidates to win, is it not?

A: Yes, Sir.

Q: Who was the opponent of Joey Marquez at that time?

A: The former Mayor Olivares, Sir.

Q: How about the opponent of Congressman Golez?

A: One of them is Eddie Gutierrez, Sir.

Q: And the tandem of Marquez and Golez versus the tandem of Olivares and Eddie Gutierrez, am I correct?

A: Actually, that was the situation at that time, Sir.

Q: Of course, the tandem of Joey Marquez was working hard to win over their opponent, is it not?

A: Whatever their problems were, I am out.

Q: As a hard campaigner, you wanted your team to win over the other, is this correct?

A: Yes, Sir.
 Q: Of course you understand what PRO work is, it includes propaganda, is that correct?

A: I am sorry I dont accept PR work, Sir.

Q: Do you understand PRO work?

A: Yes, Sir, I know.

Q: In propaganda, for your side, you promote it as against the other, right?

A: Yes, Sir.[35]

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants. Thus, petitioner cannot, by

simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in

itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign.

Neither can petitioner take refuge in the constitutional guarantee of freedom of speech and of the press. Although a wide latitude is given to critical

utterances made against public officials in the performance of their official duties, or against public figures on matters of public interest, such criticism

does not automatically fall within the ambit of constitutionally protected speech. If the utterances are false, malicious or unrelated to a public officers

performance of his duties or irrelevant to matters of public interest involving public figures, the same may give rise to criminal and civil liability. [36] While

complainants are considered public figures for being personalities in the entertainment business, media people, including gossip and intrigue writers and

commentators such as petitioner, do not have the unbridled license to malign their honor and dignity by indiscriminately airing fabricated and malicious

comments, whether in broadcast media or in print, about their personal lives. [37]

We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and
demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in
utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-
destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and
brutish. Therefore, to recognize that there can be no absolute unrestraint in speech is to truly comprehend the quintessence of
freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the freedom of others.If
there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, [W]ithout x x x a lively
sense of responsibility, a free press may readily become a powerful instrument of injustice.

Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we
have always strongly maintained, as we do now, that freedom of expression is mans birthright constitutionally protected and
guaranteed, and that it has become the singular role of the press to act as its defensor fidei in a democratic society such as
ours.But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does
not carry with it an unrestricted hunting license to prey on the ordinary citizen.[38]

In view of the foregoing disquisitions, the conviction of petitioner for libel should be upheld.

With respect to the penalty to be imposed for this conviction, we note that on January 25, 2008, the Court issued Administrative Circular No. 08-2008,

entitled Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases. The Circular expresses a preference for the

imposition of a fine rather than imprisonment, given the circumstances attendant in the cases [39] cited therein in which only a fine was imposed by this

Court on those convicted of libel. It also states that, if the penalty imposed is merely a fine but the convict is unable to pay the same, the Revised Penal

Code provisions on subsidiary imprisonment should apply.

However, the Circular likewise allows the court, in the exercise of sound discretion, the option to impose imprisonment as penalty, whenever the

imposition of a fine alone would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperatives

of justice.

In the case at bench, the Court considers the publics speculations as to the whereabouts of Annabelle Rama Gutierrez with the issuance of the warrant

of arrest after her initial conviction for estafa. Petitioner fueled these speculations through her article. However, her article went overboard and exceeded

the bounds of fair comment. This warrants her conviction. Nonetheless, in light of the relatively wide latitude given to utterances against public figures

such as private complainants, and consonant with Administrative Circular No. 08-2008, the Court deems it proper to modify the penalty of imprisonment

to a fine in the amount of P6,000.00, with subsidiary imprisonment in case of insolvency, in each case. But the award of moral damages for each of the

private complainants in the amount of P500,000.00, as ordered by the trial court, should be restored on account of the serious anxiety and the wounded

feelings suffered by complainants from the libelous article, particularly taking into account the fact that petitioner and the private complainants were on

relatively good terms with each other, and complainants gave no cause or offense which could have provoked the malicious publication.

WHEREFORE, the Decision dated September 3, 2002 of the Court of Appeals in CA-G.R. CR No. 20890 is AFFIRMED with the MODIFICATION that in

lieu of imprisonment, petitioner Cristinelli S. Fermin is sentenced to pay a fine in the amount of P6,000.00, with subsidiary imprisonment in case of

insolvency, in each case. The award of moral damages, in the amount of P300,000.00 each in favor of complainants Annabelle Rama Gutierrez and

Eduardo Gutierrez, is increased to P500,000.00. Costs against petitioner.

SO ORDERED.

ERWIN TULFO, G.R. No. 161032

Petitioner,
Present:
- versus - QUISUMBING, J., Chairperson,
CARPIO MORALES,
VELASCO, JR.,
PEOPLE OF THE PHILIPPINES NACHURA,* and
and ATTY. CARLOS T. SO, BRION, JJ.
Respondents.
x-------------------------------------------x

SUSAN CAMBRI, REY SALAO, G.R. No. 161176

JOCELYN BARLIZO, and
PHILIP PICHAY,
Petitioners,

- versus -
COURT OF APPEALS, PEOPLE
OF THE PHILIPPINES, and Promulgated:
CARLOS SO,
Respondents. September 16, 2008
x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

The freedom of the press is one of the cherished hallmarks of our democracy; but even as we strive to protect and respect the fourth estate, the freedom

it enjoys must be balanced with responsibility. There is a fine line between freedom of expression and libel, and it falls on the courts to determine

whether or not that line has been crossed.

The Facts

On the complaint of Atty. Carlos Ding So of the Bureau of Customs, four (4) separate informations were filed on September 8, 1999 with the Regional

Trial Court in (RTC) PasayCity. These were assigned to Branch 112 and docketed as Criminal Case Nos. 99-1597 to 99-1600, and charged petitioners

Erwin Tulfo, as author/writer, Susan Cambri, as managing editor, Rey Salao, as national editor, Jocelyn Barlizo, as city editor, and Philip Pichay, as

president of the Carlo Publishing House, Inc., of the daily tabloid Remate, with the crime of libel in connection with the publication of the articles in the

column Direct Hit in the issues of May 11, 1999; May 12, 1999; May 19, 1999; and June 25, 1999.[1] The four informations read as follows:
 Criminal Case No. 99-1598
th
That on or about the 11 day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then
the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the
Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant,
ATTY. CARLOS DING SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said publication on May 11, 1999, its daily column DIRECT HIT, quoted hereunder,
to wit:

PINAKAMAYAMAN SA CUSTOMS

Ito palang si Atty. Ding So ng Intelligence Division ng Bureau of Customs and [sic] pinakamayaman na yata na
government official sa buong bansa sa pangungurakot lamang diyan sa South Harbor.

Hindi matibag ang gagong attorney dahil malakas daw ito sa Iglesia ni Kristo.

Hoy, So! . . nakakahiya ka sa mga INC, ikaw na yata ang pinakagago at magnanakaw na miyembro nito.

Balita ko, malapit ka nang itiwalag ng nasabing simbahan dahil sa mga kalokohan mo.

Abangan bukas ang mga raket ni So sa BOC.

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of
public opinion.[2]

Criminal Case No. 99-1599

That on or about the 12th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then
the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the
Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant,
ATTY. CARLOS DING SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said publication on May 12, 1999, in daily column DIRECT HIT, quoted hereunder,
to wit:

SI ATTY. SO NG BOC

LINTEK din sa pangungurakot itong Ding So ng Bureau of Customs Intelligence Unit

sa South Harbor.

Daan-daang libong piso ang kinikita ng masiba at matakaw na si So sa mga importer na ayaw ideklara ang
totoong laman ng mga container para makaiwas sa pagbayad ng malaking customs duties at taxes.

Si So ang nagpapadrino sa mga pag-inspection ng mga container na ito. Siyempre-binibigyan din niya ng salapi
yung ibang mga ahensiya para pumikit na lang at itikom ang kanilang nga [sic] bibig diyan sa mga buwayang
taga BOC.

Awang-awa ako sa ating gobyerno. Bankrupt na nga, ninanakawan pa ng mga kawatan tulad ni So.

Ewan ko ba rito kay Atty. So, bakit hindi na lang tumayo ng sarili niyang robbery-hold-up gang para kumita ng
mas mabilis.

Hoy So.. hindi bagay sa iyo ang pagiging attorney . . . Mas bagay sa iyo ang pagiging buwayang naka korbata
at holdaper. Magnanakaw ka So!!

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of
public opinion.[3]

Criminal Case No. 99-1600

That on or about 19th day of May, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then
the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the
Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant,
ATTY. CARLOS DING SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said publication on May 19, 1999, in daily column DIRECT HIT, quoted hereunder,
to wit:

xxxx

Tulad ni Atty. Ding So ng Bureau of Customs Intelligence Division, saksakan din ng lakas itong si Daniel Aquino
ng Presidential Anti-Smuggling Unit na nakatalaga sa SouthHarbor.
Tulad ni So, magnanakaw na tunay itong si Aquino.

Panghihingi ng pera sa mga brokers, ang lakad nito.

Pag hindi nagbigay ng pera ang mga brokers, maiipit ang pagre-release ng kanilang kargamento.

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally acquired wealth,
all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of public opinion. [4]

Criminal Case No. 99-1597

That on or about 25th day of June, 1999 in Pasay City, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating together and mutually helping one another, being then
the columnist, publisher and managing editor, respectively of REMATE, a tabloid published daily and of general circulation in the
Philippines, did then and there willfully, unlawfully and feloniously and with malicious intent to discredit or dishonor complainant,
ATTY. CARLOS DING T. SO, and with the malicious intent of injuring and exposing said complainant to public hatred, contempt and
ridicule, write and publish in the regular issue of said publication on June 25, 1999, its daily column DIRECT HIT, quoted hereunder,
to wit:

xxxx
 Nagfile ng P10 M na libel suit itong si Atty. Carlos So ng Bureau of Customs laban sa inyong lingkod
at ilang opisyales ng Remate sa Pasay City Court. Nagalit itong tarantadong si Atty. So dahil binanatan ko siya
at inexpose ang kagaguhan niya sa BOC.

Hoy, So . . . dagdagan mo pa ang pagnanakaw mo dahil hindi kita tatantanan. Buhay ka pa

sinusunog na ang iyong kaluluwa sa impyerno.

WHEREIN said complainant was indicated as an extortionist, a corrupt public official, smuggler and having illegally
acquired wealth, all as already stated, with the object of destroying his reputation, discrediting and ridiculing him before the bar of
public opinion.[5]

On November 3, 1999, Tulfo, Salao, and Cambri were arraigned, while Barlizo and Pichay were arraigned on December 15, 1999. They all

pleaded not guilty to the offenses charged.

At pre-trial, the following were admitted by petitioners: (1) that during the four dates of the publication of the questioned articles, the

complaining witness was not assigned at South Harbor; (2) that the accused and complaining witness did not know each other during all the time

material to the four dates of publication; (3) that Remate is a newspaper/tabloid of general circulation in the Philippines; (4) the existence and

genuineness of the Remate newspaper; (5) the column therein and its authorship and the alleged libelous statement as well as the editorial post

containing the designated positions of the other accused; and (6) the prosecutions qualified admission that it is the duty of media persons to expose

corruption.[6]

The prosecution presented four witnesses, namely: Oscar M. Ablan, Atty. James Fortes, Jr., Gladys Fontanilla, and complainant Atty. So. The

prosecution presented documentary evidence as well.

Ablan testified that he had read the four columns written by Tulfo, and that the articles were untrue because he had known Atty. So since 1992

and had worked with him in the Customs Intelligence and Investigation Service Division of the Bureau of Customs. He further testified that upon reading

the articles written by Tulfo, he concluded that they referred to Atty. So because the subject articles identified Atty. Carlos as Atty. Ding So of the

Customs Intelligence and Investigation Service Division, Bureau of Customs and there was only one Atty. Carlos Ding So of the Bureau of Customs.[7]

Fontanilla, Records Officer I of the Bureau of Customs, testified that she issued a certification in connection with these cases upon the request

of Atty. So.[8] This certification stated that as per records available in her office, there was only one employee by the name of Atty. Carlos T. So who was

also known as Atty. Ding So in the Intelligence Division of the Customs Intelligence and Investigation Service or in the entire Bureau of Customs.[9]

Atty. Fortes testified that he knew Atty. So as a fellow member of the Iglesia Ni Kristo and as a lawyer, and that having read the articles of

Tulfo, he believed that these were untrue, as he knew Atty. Carlos Ding So.[10]

Atty. So testified that he was the private complainant in these consolidated cases. He further testified that he is also known as Atty. Ding So,

that he had been connected with the Bureau of Customs since October 1981, and that he was assigned as Officer-in-Charge (OIC) of the Customs

Intelligence and Investigation Service Division at the Manila International Container Port since December 27, 1999. He executed two complaint-

affidavits, one dated June 4, 1999 and the other dated July 5, 1999, for Criminal Case Nos. 99-1598 to 99-1600. Prior to this, he also filed 14 cases of

libel against Raffy Tulfo, brother of petitioner Erwin Tulfo. He testified that petitioner Tulfos act of imputing upon him criminality, assailing his honesty and

integrity, caused him dishonor, discredit, and contempt among his co-members in the legal profession, co-officers of the Armed Forces of the

Philippines, co-members and peers in the Iglesia ni Kristo, his co-officers and employees and superior officers in the Bureau of Customs, and among

ordinary persons who had read said articles. He said it also caused him and his family sleepless nights, mental anguish, wounded feelings, intrigues,

and embarrassment. He further testified that he included in his complaint for libel the officers of Remate such as the publisher, managing editor, city

editor, and national editor because under Article 360 of the Revised Penal Code (RPC), they are equally responsible and liable to the same extent as if

they were the author of the articles. He also testified that Ding is his nickname and that he is the only person in the entire Bureau of Customs who goes

by the name of Atty. Carlos T. So or Atty. Carlos Ding So.[11]

In his defense, petitioner Tulfo testified that he did not write the subject articles with malice, that he neither knew Atty. So nor met him before

the publication of the articles. He testified that his criticism of a certain Atty. So of the South Harbor was not directed against the complainant, but against

a person by the name of Atty. Ding So at the South Harbor. Tulfo claimed that it was the practice of certain people to use other peoples names to
advance their corrupt practices. He also claimed that his articles had neither discredited nor dishonored the complainant because as per his source in

the Bureau of Customs, Atty. So had been promoted. He further testified that he did not do any research on Atty. So before the subject articles, because

as a columnist, he had to rely on his source, and that he had several sources in the Bureau of Customs, particularly in the SouthHarbor.[12]

Petitioner Salao testified that he came to know Atty. Carlos Ding So when the latter filed a case against them. He testified that he is an

employee of Carlo Publishing House, Inc.; that he was designated as the national editor of the newspaper Remate since December 1999; that the duties

of the position are to edit, evaluate, encode, and supervise layout of the news from the provinces; and that Tulfo was under the supervision of Rey

Briones, Vice President for Editorial and Head of the Editorial Division. Salao further testified that he had no participation in the subject articles of Tulfo,

nor had he anything to do with the latters column.[13]

Petitioner Cambri, managing editor of Remate, testified that she classifies the news articles written by the reporters, and that in the Editorial

Division, the officers are herself; Briones, her supervisor; Lydia Bueno, as news and city editor; and Salao as national editor. She testified that petitioner

Barlizo is her subordinate, whose duties and responsibilities are the typesetting, editing, and layout of the page assigned to her, the Metro page. She

further testified that she had no participation in the writing, editing, or publication of the column of Tulfo because the column was not edited. She claimed

that none among her co-accused from the Remate newspaper edited the columns of Tulfo, that the publication and editing of the subject articles were

the responsibility of Tulfo, and that he was given blanket authority to write what he wanted to write. She also testified that the page wherein Tulfos

column appeared was supervised by Bueno as news editor.[14]

Petitioner Pichay testified that he had been the president of Carlo Publishing House, Inc. since December 1998. He testified that the company

practice was to have the columnists report directly to the vice-president of editorials, that the columnists were given autonomy on their columns, and that

the vice-president for editorials is the one who would decide what articles are to be published and what are not. He further testified that Tulfo was

already a regular contributor.[15]

The Ruling of the RTC

In a Decision dated November 17, 2000, the RTC found petitioners guilty of the crime of Libel. The dispositive portion reads as follows:

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO and PHILIP
PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised Penal
Code, and penalized by prision correccional in its minimum and medium periods, or a fine ranging from P200.00 Pesos to P6,000.00
Pesos or both, under Article 355 of the same Code.

Applying the Indeterminate Sentence Law, the Court hereby sentences EACH of the accused to suffer imprisonment of SIX (6)
MONTHS of arresto mayor, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as maximum, for
EACH count with accessory penalties provided by law.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay wrote and published the four
(4) defamatory articles with reckless disregard, being, in the mind of the Court, of whether it was false or not, the said articles
libelous per se, they are hereby ordered to pay, jointly and severally, the sum of EIGHT HUNDRED THOUSAND (P800,000.00)
PESOS, as actual damages, the sum of ONE MILLION PESOS (P1,000,000.00), as moral damages, and an additional amount of
FIVE HUNDRED THOUSAND PESOS (P500,000.00), by way of exemplary damages, all with subsidiary imprisonment, in case of
insolvency, and to pay the costs.

SO ORDERED.[16]

The Ruling of the Court of Appeals

Before the Court of Appeals (CA), Tulfo assigned the following errors:

1. THE LOWER COURT ERRED IN IGNORING THE UNREBUTTED TESTIMONY OF THE APPELLANT THAT HE DID NOT
CRITICIZE THE PRIVATE COMPLAINANT WORKING AT THE NAIA. HE CRITICIZED ANOTHER PERSON WORKING AT
THE SOUTH HARBOR. HENCE, THE ELEMENT OF IDENTITY IS LACKING.
2. THE LOWER COURT ERRED IN IGNORING THE LACK OF THE ESSENTIAL ELEMENT OF DISCREDIT OR DISHONOR,
AS DEFINED BY JURISPRUDENCE.
3. THERE WAS NO MALICE AGAINST THE PRIVATE COMPLAINANT ATTY. CARLOS DING SO.[17]

His co-accused assigned the following errors:

The trial court seriously erred in holding accused Susan Cambri, Rey Salao, Jocelyn Barlizo and Philip Pichay liable for the
defamations contained in the questioned articles despite the fact that the trial court did not have any finding as to their participation
in the writing, editing and/or publication of the questioned articles.
 B

The trial court seriously erred in concluding that libel was committed by all of the accused on the basis of its finding that the
elements of libel have been satisfactorily established by evidence on record.

The trial court seriously erred in considering complainant to be the one referred to by Erwin Tulfo in his articles in question.[18]

In a Decision[19] dated June 17, 2003, the Eighth Division of the CA dismissed the appeal and affirmed the judgment of the trial court. A motion for

reconsideration dated June 30, 2003 was filed by Tulfo, while the rest of his co-accused filed a motion for reconsideration dated July 2, 2003. In a

Resolution dated December 11, 2003, both motions were denied for lack of merit. [20]

Petitions for Review on Certiorari under Rule 45

Tulfo brought this petition docketed as G.R. No. 161032, seeking to reverse the Decision of the CA in CA-G.R. CR No. 25318 which affirmed the

decision of the RTC.Petitioners Cambri, Salao, Barlizo, and Pichay brought a similar petition docketed as G.R. No. 161176, seeking the nullification of

the same CA decision.

In a Resolution dated March 15, 2004, the two cases were consolidated since both cases arise from the same set of facts, involve the same parties,

assail the same decision of the CA, and seek identical reliefs.[21]

Assignment of Errors

Petitioner Tulfo submitted the following assignment of errors:

Assuming that the Prosecution presented credible and relevant evidence, the Honorable CA erred in not declaring the assailed
articles as privileged; the CA erred in concluding that malice in law exists by the courts having incorrectly reasoned out that malice
was presumed in the instant case.

II

Even assuming arguendo that the articles complained of are not privileged, the lower court, nonetheless, committed gross error as
defined by the provisions of Section 6 of Rule 45 by its misappreciation of the evidence presented on matters substantial and
material to the guilt or innocence of the petitioner.[22]

Petitioners Cambri, Salao, Barlizo, and Pichay submitted their own assignment of errors, as follows:

A - The Court of Appeals Seriously Erred In Its Application of Article 360 Of The Revised Penal Code By Holding Cambri, Salao And
Barlizo Liable For The Defamatory Articles In The May 11, 12, 19 And June 25, 1999 Issues Of Remate Simply Because They Were
Managing Editor, National Editor And City Editor Respectively Of Remate And By Holding Pichay Also Liable For Libel Merely
Because He Was The President Of Carlo Publishing House, Inc. Without Taking Into Account The Unrebutted Evidence That
Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question.

B - The Court Of Appeals Committed Grave Abuse Of Discretion In Manifestly Disregarding The Unrebutted Evidence That
Petitioners Had No Participation In The Editing Or Publication Of The Defamatory Articles In Question.

C - The Court Of Appeals Seriously Misappreciated The Evidence In Holding That The Person Referred To In The Published
Articles Was Private Complainant Atty. Carlos So.[23]

Our Ruling

The petitions must be dismissed.

The assignment of errors of petitioner Tulfo shall be discussed first.

In his appeal, Tulfo claims that the CA erred in not applying the ruling in Borjal v. Court of Appeals.[24] In essence, he argues that the subject articles fall

under qualifiedly privileged communication under Borjal and that the presumption of malice in Art. 354 of the RPC does not apply. He argues that it is the

burden of the prosecution to prove malice in fact.

This case must be distinguished from Borjal on several points, the first being that Borjal stemmed from a civil action for damages based on libel, and was

not a criminal case.Second, the ruling in Borjal was that there was no sufficient identification of the complainant, which shall be differentiated from the

present case in discussing the second assignment of error of Tulfo. Third, the subject in Borjal was a private citizen, whereas in the present case, the

subject is a public official. Finally, it was held in Borjal that the articles written by Art Borjal were fair commentaries on matters of public interest. [25] It shall

be discussed and has yet to be determined whether or not the articles fall under the category of fair commentaries.

In passing, it must be noted that the defense of Tulfos articles being qualifiedly privileged communication is raised for the first time in the present

petition, and this particular issue was never brought before either the RTC or the CA. Thus, neither the RTC nor the CA had a chance to properly

consider and evaluate this defense. Tulfo now draws parallels between his case and that of Art Borjal, and argues that the prosecution should have

proved malice in fact, and it was error on the part of the trial and appellate courts to use the presumption of malice in law in Art. 354 of the RPC. This

lays an unusual burden on the part of the prosecution, the RTC, and the CA to refute a defense that Tulfo had never raised before them. Whether or not

the subject articles are privileged communications must first be established by the defense, which it failed to do at the level of the RTC and the CA. Even

so, it shall be dealt with now, considering that an appeal in a criminal proceeding throws the whole case open for review.

There is no question of the status of Atty. So as a public official, who served as the OIC of the Bureau of Customs Intelligence and Investigation Service

at the Ninoy Aquino International Airport (NAIA) at the time of the printing of the allegedly libelous articles. Likewise, it cannot be refuted that the goings-

on at the Bureau of Customs, a government agency, are matters of public interest. It is now a matter of establishing whether the articles of Tulfo are

protected as qualified privileged communication or are defamatory and written with malice, for which he would be liable.

Freedom of the Press v. Responsibility of the Press

The Court has long respected the freedom of the press, and upheld the same when it came to commentaries made on public figures and matters of

public interest. Even in cases wherein the freedom of the press was given greater weight over the rights of individuals, the Court, however, has stressed

that such freedom is not absolute and unbounded. The exercise of this right or any right enshrined in the Bill of Rights, indeed, comes with an equal

burden of responsible exercise of that right. The recognition of a right is not free license for the one claiming it to run roughshod over the rights of others.

The Journalists Code of Ethics adopted by the National Union of Journalists of the Philippines shows that the press recognizes that it has standards to

follow in the exercise of press freedom; that this freedom carries duties and responsibilities. Art. I of said code states that journalists recognize the duty

to air the other side and the duty to correct substantive errors promptly. Art. VIII states that journalists shall presume persons accused of crime of being

innocent until proven otherwise.

In the present case, it cannot be said that Tulfo followed the Journalists Code of Ethics and exercised his journalistic freedom responsibly.

In his series of articles, he targeted one Atty. Ding So of the Bureau of Customs as being involved in criminal activities, and was using his public position

for personal gain. He went even further than that, and called Atty. So an embarrassment to his religion, saying ikaw na yata ang pinakagago at

magnanakaw sa miyembro nito.[26] He accused Atty. So of stealing from the government with his alleged corrupt activities. [27] And when Atty. So filed a

libel suit against him, Tulfo wrote another article, challenging Atty. So, saying, Nagalit itong tarantadong si Atty. So dahil binabantayan ko siya at in-

expose ang kagaguhan niya sa [Bureau of Customs].[28]

In his testimony, Tulfo admitted that he did not personally know Atty. So, and had neither met nor known him prior to the publication of the subject

articles. He also admitted that he did not conduct a more in-depth research of his allegations before he published them, and relied only on his source at

the Bureau of Customs.

In his defense before the trial court, Tulfo claimed knowledge of people using the names of others for personal gain, and even stated that he had been

the victim of such a practice. He argued then that it may have been someone else using the name of Atty. So for corrupt practices at the South Harbor,

and this person was the target of his articles.This argument weakens his case further, for even with the knowledge that he may be in error, even knowing
of the possibility that someone else may have used Atty. Sos name, as Tulfo surmised, he made no effort to verify the information given by his source or

even to ascertain the identity of the person he was accusing.

The trial court found Tulfos accusations against Atty. So to be false, but Tulfo argues that the falsity of contents of articles does not affect their privileged

character. It may be that the falsity of the articles does not prove malice. Neither did Borjal give journalists carte blanche with regard to their

publications. It cannot be said that a false article accusing a public figure would always be covered by the mantle of qualified privileged

communication. The portion of Borjal cited by Tulfo must be scrutinized further:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good
faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections
in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing
Corp. v. Noel we held

A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to court by one
group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for
injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that
the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the
absence of proof of actual malice on the part of the person making the libelous statement.[29] (Emphasis supplied.)

Reading more deeply into the case, the exercise of press freedom must be done consistent with good faith and reasonable care. This was clearly

abandoned by Tulfo when he wrote the subject articles. This is no case of mere error or honest mistake, but a case of a journalist abdicating his

responsibility to verify his story and instead misinforming the public. Journalists may be allowed an adequate margin of error in the exercise of their

profession, but this margin does not expand to cover every defamatory or injurious statement they may make in the furtherance of their profession, nor

does this margin cover total abandonment of responsibility.

Borjal may have expanded the protection of qualified privileged communication beyond the instances given in Art. 354 of the RPC, but this expansion

does not cover Tulfo. The addition to the instances of qualified privileged communications is reproduced as follows:
To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false,
because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false
allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established
facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the
facts.[30] (Emphasis supplied.)

The expansion speaks of fair commentaries on matters of public interest. While Borjal places fair commentaries within the scope of qualified privileged

communication, the mere fact that the subject of the article is a public figure or a matter of public interest does not automatically exclude the author from

liability. Borjal allows that for a discreditable imputation to a public official to be actionable, it must be a false allegation of fact or a comment based on a

false supposition. As previously mentioned, the trial court found that the allegations against Atty. So were false and that Tulfo did not exert effort to verify

the information before publishing his articles.

Tulfo offered no proof for his accusations. He claimed to have a source in the Bureau of Customs and relied only on this source for his columns, but did

no further research on his story. The records of the case are bereft of any showing that Atty. So was indeed the villain Tulfo pictured him to be. Tulfos

articles related no specific details or acts committed to prove Atty. So was indeed a corrupt public official. These columns were unsubstantiated attacks

on Atty. So, and cannot be countenanced as being privileged simply because the target was a public official. Although wider latitude is given to

defamatory utterances against public officials in connection with or relevant to their performance of official duties, or against public officials in relation to

matters of public interest involving them, such defamatory utterances do not automatically fall within the ambit of constitutionally protected

speech.[31] Journalists still bear the burden of writing responsibly when practicing their profession, even when writing about public figures or matters of

public interest.As held in In Re: Emil P. Jurado:

Surely it cannot be postulated that the law protects a journalist who deliberately prints lies or distorts the truth; or that a newsman
may ecape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona
fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It
outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists Code of Ethics to
allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and
offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg
 off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those
sources.[32]

The prosecution showed that Tulfo could present no proof of his allegations against Atty. So, only citing his one unnamed source. It is not demanded of

him that he name his source. The confidentiality of sources and their importance to journalists are accepted and respected. What cannot be accepted

are journalists making no efforts to verify the information given by a source, and using that unverified information to throw wild accusations and besmirch

the name of possibly an innocent person. Journalists have a responsibility to report the truth, and in doing so must at least investigate their stories before

publication, and be able to back up their stories with proof. The rumors and gossips spread by unnamed sources are not truth. Journalists are not

storytellers or novelists who may just spin tales out of fevered imaginings, and pass them off as reality. There must be some foundation to their reports;

these reports must be warranted by facts.

Jurado also established that the journalist should exercise some degree of care even when writing about public officials. The case stated:
Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public
officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment
or accommodation between these two legitimate interests is precisely found in the norm which requires those who, invoking freedom
of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care
in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth of what he
says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or
circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm represents the generally
accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil
law norms and the Code of Ethics adopted by the journalism profession in the Philippines.[33]

Tulfo has clearly failed in this regard. His articles cannot even be considered as qualified privileged communication under the second

paragraph of Art. 354 of the RPC which exempts from the presumption of malice a fair and true report, made in good faith, without any comments or

remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or any statement, report, or speech delivered in said

proceedings, or of any other act performed by public officers in the exercise of their functions. This particular provision has several elements which must

be present in order for the report to be exempt from the presumption of malice. The provision can be dissected as follows:

In order that the publication of a report of an official proceeding may be considered privileged, the following conditions
must exist:

(a) That it is a fair and true report of a judicial, legislative, or other official proceedings which are not of
confidential nature, or of a statement, report or speech delivered in said proceedings, or of any
other act performed by a public officer in the exercise of his functions;
(b) That it is made in good faith; and
(c) That it is without any comments or remarks.[34]

The articles clearly are not the fair and true reports contemplated by the provision. They provide no details of the acts committed by the

subject, Atty. So. They are plain and simple baseless accusations, backed up by the word of one unnamed source. Good faith is lacking, as Tulfo failed

to substantiate or even attempt to verify his story before publication. Tulfo goes even further to attack the character of the subject, Atty. So, even calling

him a disgrace to his religion and the legal profession. As none of the elements of the second paragraph of Art. 354 of the RPC is present in Tulfos

articles, it cannot thus be argued that they are qualified privileged communications under the RPC.

Breaking down the provision further, looking at the terms fair and true, Tulfos articles do not meet the standard. Fair is defined as having the

qualities of impartiality and honesty.[35] True is defined as conformable to fact; correct; exact; actual; genuine; honest. [36] Tulfo failed to satisfy these

requirements, as he did not do research before making his allegations, and it has been shown that these allegations were baseless. The articles are not

fair and true reports, but merely wild accusations.

Even assuming arguendo that the subject articles are covered by the shield of qualified privileged communication, this would still not protect

Tulfo.

In claiming that his articles were covered by qualified privileged communication, Tulfo argues that the presumption of malice in law under Art.

354 of the RPC is no longer present, placing upon the prosecution the burden of proving malice in fact. He then argues that for him to be liable, there

should have been evidence that he was motivated by ill will or spite in writing the subject articles.

The test to be followed is that laid down in New York Times Co. v. Sullivan,[37] and reiterated in Flor v. People, which should be to determine

whether the defamatory statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was

false or not.[38]
 The trial court found that Tulfo had in fact written and published the subject articles with reckless disregard of whether the same were false or

not, as proven by the prosecution. There was the finding that Tulfo failed to verify the information on which he based his writings, and that the defense

presented no evidence to show that the accusations against Atty. So were true. Tulfo cannot argue that because he did not know the subject, Atty. So,

personally, there was no malice attendant in his articles. The test laid down is the reckless disregard test, and Tulfo has failed to meet that test.

The fact that Tulfo published another article lambasting respondent Atty. So can be considered as further evidence of malice, as held in U.S.

vs. Montalvo,[39] wherein publication after the commencement of an action was taken as further evidence of a malicious design to injure the victim. Tulfo

did not relent nor did he pause to consider his actions, but went on to continue defaming respondent Atty. So. This is a clear indication of his intent to

malign Atty. So, no matter the cost, and is proof of malice.

Leaving the discussion of qualified privileged communication, Tulfo also argues that the lower court misappreciated the evidence presented as

to the identity of the complainant: that Tulfo wrote about Atty. Ding So, an official of the Bureau of Customs who worked at the South Harbor, whereas

the complainant was Atty. Carlos So who worked at the NAIA. He claims that there has arisen a cloud of doubt as to the identity of the real party referred

to in the articles.

This argument is patently without merit.

The prosecution was able to present the testimonies of two other witnesses who identified Atty. So from Tulfos articles. There is the

certification that there is only one Atty. So in the Bureau of Customs. And most damning to Tulfos case is the last column he wrote on the matter,

referring to the libel suit against him by Atty. So of the Bureau of Customs. In this article, Tulfo launched further attacks against Atty. So, stating that the

libel case was due to the exposs Tulfo had written on the corrupt acts committed by Atty. So in the Bureau of Customs. This last article is an admission

on the part of Tulfo that Atty. So was in fact the target of his attacks. He cannot now point to a putative Atty. Ding So at South Harbor, or someone else

using the name of Atty. So as the real subject of his attacks, when he did not investigate the existence or non-existence of an Atty. So at South Harbor,

nor investigate the alleged corrupt acts of Atty. So of the Bureau of Customs. Tulfo cannot say that there is doubt as to the identity of the Atty. So

referred to in his articles, when all the evidence points to one Atty. So, the complainant in the present case.

Having discussed the issue of qualified privileged communication and the matter of the identity of the person referred to in the subject articles,

there remains the petition of the editors and president of Remate, the paper on which the subject articles appeared.

In sum, petitioners Cambri, Salao, Barlizo, and Pichay all claim that they had no participation in the editing or writing of the subject articles,

and are thus not liable.

The argument must fail.

The language of Art. 360 of the RPC is plain. It lists the persons responsible for libel:
Art. 360. Persons responsible.Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in
writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication,
shall be responsible for the defamations contained therein to the same extent as if he were the author thereof.

The claim that they had no participation does not shield them from liability. The provision in the RPC does not provide absence of participation

as a defense, but rather plainly and specifically states the responsibility of those involved in publishing newspapers and other periodicals. It is not a

matter of whether or not they conspired in preparing and publishing the subject articles, because the law simply so states that they are liable as they

were the author.

Neither the publisher nor the editors can disclaim liability for libelous articles that appear on their paper by simply saying they had no

participation in the preparation of the same. They cannot say that Tulfo was all alone in the publication of Remate, on which the subject articles

appeared, when they themselves clearly hold positions of authority in the newspaper, or in the case of Pichay, as the president in the publishing

company.
 As Tulfo cannot simply say that he is not liable because he did not fulfill his responsibility as a journalist, the other petitioners cannot simply

say that they are not liable because they did not fulfill their responsibilities as editors and publishers. An editor or manager of a newspaper, who has

active charge and control of its management, conduct, and policy, generally is held to be equally liable with the owner for the publication therein of a

libelous article.[40] On the theory that it is the duty of the editor or manager to know and control the contents of the paper, [41] it is held that said person

cannot evade responsibility by abandoning the duties to employees,[42] so that it is immaterial whether or not the editor or manager knew the contents of

the publication.[43] In Fermin v. People of the Philippines,[44] the Court held that the publisher could not escape liability by claiming lack of participation in

the preparation and publication of a libelous article. The Court cited U.S. v. Ocampo, stating the rationale for holding the persons enumerated in Art. 360

of the RPC criminally liable, and it is worth reiterating:

According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous
matter is liable for the same by reason of his direct connection therewith and his cognizance of the contents thereof. With regard to
a publication in which a libel is printed, not only is the publisher but also all other persons who in any way participate in or have any
connection with its publication are liable as publishers.

xxxx

In the case of State vs. Mason (26 L.R.A., 779; 26 Oreg., 273, 46 Am. St. Rep., 629), the question of the responsibility of
the manager or proprietor of a newspaper was discussed. The court said, among other things (pp. 782, 783):

The question then recurs as to whether the manager or proprietor of a newspaper can escape criminal responsibility
solely on the ground that the libelous article was published without his knowledge or consent. When a libel is published in a
newspaper, such fact alone is sufficient evidence prima facie to charge the manager or proprietor with the guilt of its publication.

The manager and proprietor of a newspaper, we think ought to be held prima facie criminally for whatever appears in his
paper; and it should be no defense that the publication was made without his knowledge or consent, x x x.

One who furnishes the means for carrying on the publication of a newspaper and entrusts its management to servants or
employees whom he selects and controls may be said to cause to be published what actually appears, and should be held
responsible therefore, whether he was individually concerned in the publication or not, x x x. Criminal responsibility for the acts of an
agent or servant in the course of his employment necessarily implies some degree of guilt or delinquency on the part of the
publisher; x x x.

We think, therefore, the mere fact that the libelous article was published in the newspaper without the knowledge or
consent of its proprietor or manager is no defense to a criminal prosecution against such proprietor or manager.

In the case of Commonwealth vs. Morgan (107 Mass., 197), this same question was considered and the court held that in
the criminal prosecution of a publisher of a newspaper in which a libel appears, he is prima facie presumed to have published the
libel, and that the exclusion of an offer by the defendant to prove that he never saw the libel and was not aware of its publication
until it was pointed out to him and that an apology and retraction were afterwards published in the same paper, gave him no ground
for exception. In this same case, Mr. Justice Colt, speaking for the court, said:

It is the duty of the proprietor of a public paper, which may be used for the publication of improper communications, to use
reasonable caution in the conduct of his business that no libels be published. (Whartons Criminal Law, secs. 1627, 1649; 1 Bishops
Criminal Law, secs. 219, 221; People vs. Wilson, 64 Ill., 195; Commonwealth vs. Damon, 136 Mass., 441.)

The above doctrine is also the doctrine established by the English courts. In the case of Rex vs. Walter (3 Esp., 21) Lord
Kenyon said that he was clearly of the opinion that the proprietor of a newspaper was answerable criminally as well as civilly for the
acts of his servants or agents for misconduct in the management of the paper.

This was also the opinion of Lord Hale, Mr. Justice Powell, and Mr. Justice Foster.

Lofft, an English author, in his work on Libel and Slander, said:

An information for libel will lie against the publisher of a papers, although he did not know of its being put into the paper
and stopped the sale as soon as he discovered it.

In the case of People vs. Clay (86 Ill., 147) the court held that

A person who makes a defamatory statement to the agent of a newspaper for publication, is liable both civilly and
criminally, and his liability is shared by the agent and all others who aid in publishing it.[45]

Under Art. 360 of the RPC, as Tulfo, the author of the subject articles, has been found guilty of libel, so too must Cambri, Salao, Barlizo, and

Pichay.

Though we find petitioners guilty of the crime charged, the punishment must still be tempered with justice. Petitioners are to be punished for

libel for the first time. They did not apply for probation to avoid service of sentence possibly in the belief that they have not committed any

crime. In Buatis, Jr. v. People,[46] the Court, in a criminal case for libel, removed the penalty of imprisonment and instead imposed a fine as

penalty. In Sazon v. Court of Appeals,[47] the accused was merely fined in lieu of the original penalty of imprisonment and fine. Freedom of expression as

well as freedom of the press may not be unrestrained, but neither must it be reined in too harshly. In light of this, considering the necessity of a free

press balanced with the necessity of a responsible press, the penalty of a fine of PhP 6,000 for each count of libel, with subsidiary imprisonment in case

of insolvency, should suffice.[48] Lastly, the responsibilities of the members of the press notwithstanding, the difficulties and hazards they encounter in

their line of work must also be taken into consideration.

 The award of damages by the lower court must be modified. Art. 2199 of the Civil Code provides, Except as provided by law or by stipulation,

one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as

actual or compensatory damages. There was no showing of any pecuniary loss suffered by the complainant Atty. So. Without proof of actual loss that

can be measured, the award of actual damages cannot stand.

In Del Mundo v. Court of Appeals, it was held, as regards actual and moral damages:

A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly
proved. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree
of certainty. We have emphasized that these damages cannot be presumed, and courts, in making an award must point out specific
facts which could afford a basis for measuring whatever compensatory or actual damages are borne.

Moral damages, upon the other hand, may be awarded to compensate one for manifold injuries such as physical
suffering, mental anguish, serious anxiety, besmirched reputation, wounded feelings and social humiliation. These damages must
be understood to be in the concept of grants, not punitive or corrective in nature, calculated to compensate the claimant for the
injury suffered. Although incapable of exactness and no proof of pecuniary loss is necessary in order that moral damages may be
awarded, the amount of indemnity being left to the sound discretion of the court, it is imperative, nevertheless, that (1) injury must
have been suffered by the claimant, and (2) such injury must have sprung from any of the cases expressed in Article 2219 and
Article 2220 of the Civil Code. A causal relation, in fine, must exist between the act or omission referred to in the Code which
underlies, or gives rise to, the case or proceeding on the one hand, and the resulting injury, on the other hand; i.e. the first must be
the proximate cause and the latter the direct consequence thereof.[49]

It was the articles of Tulfo that caused injury to Atty. So, and for that Atty. So deserves the award of moral damages. Justification for the award

of moral damages is found in Art. 2219(7) of the Civil Code, which states that moral damages may be recovered in cases of libel, slander, or any other

form of defamation. As the cases involved are criminal cases of libel, they fall squarely within the ambit of Art. 2219(7).

Moral damages can be awarded even in the absence of actual or compensatory damages. The fact that no actual or compensatory damage

was proven before the trial court does not adversely affect the offended partys right to recover moral damages.[50]

And while on the subject of moral damages, it may not be amiss to state at this juncture that Tulfos libelous articles are abhorrent not only

because of its vilifying and demeaning effect on Atty. So himself, but also because of their impact on members of his family, especially on the children

and possibly even the childrens children.

The Court can perhaps take judicial notice that the sense of kinship runs deeply in a typical Filipino family, such that the whole family usually

suffers or rejoices at the misfortune or good fortune, as the case may be, of any of its member. Accordingly, any attempt to dishonor or besmirch the

name and reputation of the head of the family, as here, invariably puts the other members in a state of disrepute, distress, or anxiety. This reality adds

an imperative dimension to the award of moral damages to the defamed party.

The award of exemplary damages, however, cannot be justified. Under Art. 2230 of the Civil Code, In criminal offenses, exemplary damages

as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate

and distinct from fines and shall be paid to the offended party. No aggravating circumstances accompanied the commission of the libelous acts; thus, no

exemplary damages can be awarded.

Conclusion

The press wields enormous power. Through its widespread reach and the information it imparts, it can mold and shape thoughts and opinions

of the people. It can turn the tide of public opinion for or against someone, it can build up heroes or create villains.

It is in the interest of society to have a free press, to have liberal discussion and dissemination of ideas, and to encourage people to engage in

healthy debate. It is through this that society can progress and develop.

Those who would publish under the aegis of freedom of the press must also acknowledge the corollary duty to publish responsibly. To show

that they have exercised their freedom responsibly, they must go beyond merely relying on unfounded rumors or shadowy anonymous sources. There

must be further investigation conducted, some shred of proof found to support allegations of misconduct or even criminal activity. It is in fact too easy for
journalists to destroy the reputation and honor of public officials, if they are not required to make the slightest effort to verify their accusations. Journalists

are supposed to be reporters of facts, not fiction, and must be able to back up their stories with solid research. The power of the press and the

corresponding duty to exercise that power judiciously cannot be understated.

But even with the need for a free press, the necessity that it be free does not mean that it be totally unfettered. It is still acknowledged that the

freedom can be abused, and for the abuse of the freedom, there must be a corresponding sanction. It falls on the press to wield such enormous power

responsibly. It may be a clich that the pen is mightier than the sword, but in this particular case, the lesson to be learned is that such a mighty weapon

should not be wielded recklessly or thoughtlessly, but always guided by conscience and careful thought.

A robust and independently free press is doubtless one of the most effective checks on government power and abuses. Hence, it behooves

government functionaries to respect the value of openness and refrain from concealing from media corruption and other anomalous practices occurring

within their backyard. On the other hand, public officials also deserve respect and protection against false innuendoes and unfounded accusation of

official wrongdoing from an abusive press. As it were, the law and jurisprudence on libel heavily tilt in favor of press freedom. The common but most

unkind perception is that government institutions and their officers and employees are fair game to official and personal attacks and even ridicule. And

the practice on the ground is just as disconcerting. Reports and accusation of official misconduct often times merit front page or primetime treatment,

while defenses set up, retraction issued, or acquittal rendered get no more, if ever, perfunctory coverage. The unfairness needs no belaboring. The balm

of clear conscience is sometimes not enough.

Perhaps lost in the traditional press freedom versus government impasse is the fact that a maliciously false imputation of corruption and

dishonesty against a public official, as here, leaves a stigmatizing mark not only on the person but also the office to which he belongs. In the ultimate

analysis, public service also unduly suffers.

WHEREFORE, in view of the foregoing, the petitions in G.R. Nos. 161032 and 161176 are DISMISSED. The CA Decision dated June 17,

2003 in CA-G.R. CR No. 25318 is hereby AFFIRMED with the MODIFICATIONS that in lieu of imprisonment, the penalty to be imposed upon petitioners

shall be a fine of six thousand pesos (PhP 6,000) for each count of libel, with subsidiary imprisonment in case of insolvency, while the award of actual

damages and exemplary damages is DELETED. The Decision dated November 17, 2000 of the RTC, Branch 112 in Pasay City in Criminal Case Nos.

99-1597 to 99-1600 is modified to read as follows:

WHEREFORE, the Court finds the accused ERWIN TULFO, SUSAN CAMBRI, REY SALAO, JOCELYN BARLIZO, and
PHILIP PICHAY guilty beyond reasonable doubt of four (4) counts of the crime of LIBEL, as defined in Article 353 of the Revised
Penal Code, and sentences EACH of the accused to pay a fine of SIX THOUSAND PESOS (PhP 6,000) per count of libel with
subsidiary imprisonment, in case of insolvency.

Considering that the accused Erwin Tulfo, Susan Cambri, Rey Salao, Jocelyn Barlizo, and Philip Pichay wrote and
published the four (4) defamatory articles with reckless disregard whether it was false or not, the said articles being libelous per
se, they are hereby ordered to pay complainant Atty. Carlos T. So, jointly and severally, the sum of ONE MILLION PESOS
(PhP 1,000,000) as moral damages. The claim of actual and exemplary damages is denied for lack of merit.

Costs against petitioners.

SO ORDERED.

PRE-NY TIMES VS SULLIVAN PHILIPPINE CASES

G.R. No. L-12592 March 8, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
FELIPE BUSTOS, ET AL., defendants-appellants.

Kincaid and Perkins for appellants.

Acting Attorney-General Paredes, for appellee.

MALCOLM, J.:

This appeal presents the specific question of whether or not the defendants and appellants are guilty of a libel of Roman Punsalan, justice of the peace
of Macabebe and Masantol, Province of Pampanga. The appeal also submits the larger question of the attitude which the judiciary should take
interpreting and enforcing the Libel Law in connection with the basic prerogatives of freedom of speech and press, and of assembly and petition. For a
better understanding, the facts in the present appeal are the first narrated in the order of their occurrence, then certain suggestive aspects relative to the
rights of freedom of speech and press and of assembly and petition are interpolated, then the facts are tested by these principles, and, finally, judgment
is rendered.

First, the facts. In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and prepared and signed a petition to the
Executive Secretary through the law office of Crossfield and O'Brien, and five individuals signed affidavits, charging Roman Punsalan, justice of the
peace of Macabebe and Masantol, Pampanga, with malfeasance in office and asking for his removal. Crossfield and O'Brien submitted this petition and
these affidavits with a complaint to the Executive Secretary. The petition transmitted by these attorneys was signed by thirty-four citizens apparently of
considerable standing, including councilors and property owners (now the defendants), and contained the statements set out in the information as
libelous. Briefly stated the specific charges against the justice of the peace were.

1. That Francisca Polintan, desiring to make complaint against Mariano de los Reyes, visited the justice of the peace, who first told her that he would
draw up complaint for P5; afterwards he said he would take P3 which she paid; also kept her in the house for four days as a servant and took from her
two chickens and twelve "gandus;"

2. That Valentin Sunga being interested in a case regarding land which was on trial before the justice of the peace, went to see the justice of the peace
to ascertain the result of the trial, and was told by the justice of the peace that if he wished to win he must give him P50. Not having this amount, Sunga
gave the justice nothing, and a few days later was informed that he had lost the case. Returning again to the office of the justice of the peace in order to
appeal, the justice told him that he could still win if he would pay P50;

3. That Leoncio Quiambao, having filed a complaint for assault against four persons, on the day of the trial the justice called him over to his house,
where he secretly gave him (Quiambao) P30; and the complaint was thereupon shelved.

The Executive Secretary referred the papers to the judge of first instance for the Seventh Judicial District requesting investigation, proper action, and
report. The justice of the peace was notified and denied the charges. The judge of first instance found the first count not proved and counts 2 and 3
established. In view of this result, the judge, the Honorable Percy M. Moir, was of the opinion "that it must be, and it is hereby, recommended to the
Governor-General that the respondent be removed from his position as justice of the peace of Macabebe and Masantol, Province of Pampanga, and it is
ordered that the proceedings had in this case be transmitted to the Executive Secretary."

Later the justice of the peace filled a motion for a new trial; the judge of first instance granted the motion and reopened the hearing; documents were
introduced, including a letter sent by the municipal president and six councilors of Masantol, Pampanga, asserting that the justice of the peace was the
victim of prosecution, and that one Agustin Jaime, the auxiliary justice of the peace, had instituted the charges for personal reasons; and the judge of
first instance ordered a suppression of the charges against Punsalan and acquitted him the same. Attorneys for complainants thereupon appealed to the
Governor-General, but whether the papers were forwarded to the Governor-General as requested the record does not disclose.

Criminal action against the petitioners, now become the defendants, was instituted on October 12, 1916, by virtue of the following information:

That on or about the month of December, 1915, in the municipality of Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and
criminally and with malicious intent to prejudice and defame Mr. Roman Punsalan Serrano who was at said time and place justice of the peace
of Macabebe and Masantol of this province, wrote, signed, and published a writing which was false, scandalous, malicious, defamatory, and
libelous against the justice of the peace Mr. Roman Punsalan Serrano, in which writing appear among other things the following:

That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of Macabebe, on account of the conduct observed by him heretofore,
a conduct highly improper of the office which he holds, is found to be a public functionary who is absolutely unfair, eminently immoral and
dangerous to the community, and consequently unworthy of the office.

That this assertion of the undersigned is evidenced in a clear and positive manner by facts so certain, so serious, and so denigrating which
appear in the affidavits attached hereto, and by other facts no less serious, but which the undersigned refrain from citing herein for the sake of
brevity and in order not to bother too much the attention of your Honor and due to lack of sufficient proof to substantiate them.

That should the higher authorities allow the said justice of the peace of this town to continue in his office, the protection of the rights and
interests of its inhabitants will be illusory and utopic; rights and interest solemnly guaranteed by the Philippine Bill of Rights, and justice in this
town will not be administered in accordance with law.

That on account of the wrongful discharge of his office and of his bad conducts as such justice of the peace, previous to this time, some
respectable citizens of this town of Macabebe were compelled to present an administrative case against the said Roman Punsalan Serrano
before the judge of first instance of Pampanga, in which case there were made against him various charges which were true and certain and
of different characters.

That after the said administrative case was over, the said justice of the peace, far from charging his bad and despicable conduct, which has
roused the indignation of this town of Macabebe, subsequently performed the acts abovementioned, as stated in the affidavits herewith
attached, as if intending to mock at the people and to show his mistaken valor and heroism.'

All of this has been written and published by the accused with deliberate purpose of attacking the virtue, honor, and reputation of the justice of
the peace, Mr. Roman Punsalan Serrano, and thus exposing him to public hatred contempt, and ridicule. All contrary to law.

It should be noted that the information omits paragraphs of the petition mentioning the investigation before the judge of first instance, the affidavits upon
which based and concluding words, "To the Executive Secretary, through the office of Crossfield and O'Brien."

The Honorable Percy M. Moir found all the defendants, with the exception of Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari,
guilty and sentenced each of them to pay a fine of P10 and one thirty-second part of the costs, or to suffer subsidiary imprisonment in case of
insolvency. New attorneys for the defense, coming into the case, after the handing down of the decision, file on December 16, 1916, a motion for a new
trial, the principal purpose of which was to retire the objection interposed by the then counsel for the defendants to the admission of Exhibit A consisting
of the entire administrative proceedings. The trial court denied the motion. All the defendants, except Melecio S. Sabado and Fortunato Macalino
appealed making the following assignments of error:

1. The court erred in overruling the motion of the convicted defendants for a new trial.

2. The court erred in refusing to permit the defendants to retire the objection in advertently interposed by their counsel to the admission in
evidence of the expediente administrativo out of which the accusation in this case arose.

3. The court erred in sustaining the objection of the prosecution to the introduction in evidence by the accused of the affidavits upon which the
petition forming the basis of the libelous charge was based.

4. The court erred in not holding that the alleged libelous statement was unqualifiedly privileged.

5. The court erred in assuming and impliedly holding that the burden was on the defendants to show that the alleged libelous statements were
true and free from malice.
 6. The court erred in not acquitting the defendants.

7. The evidence adduced fails to show the guilt of the defendants beyond a reasonable doubt. This is especially true of all the defendants,
except Felipe Bustos, Dionisio Mallari, and Jose T. Reyes.

We have thus far taken it for granted that all the proceedings, administrative and judicial, were properly before this court. As a matter of fact counsel for
defendants in the lower court made an improvident objection to the admission of the administrative proceedings on the ground that the signatures were
not identified and that the same was immaterial, which objection was partially sustained by the trial court. Notwithstanding this curious situation by
reason of which the attorney for the defense attempted to destroy through his objection the very foundation for the justification of his clients, we shall
continue to consider all the proceedings as before us. Not indicating specifically the reason for this action, let the following be stated: The administrative
proceedings were repeatedly mentioned during the trial. These proceedings were the basis of the accusation, the information, the evidence, and the
judgment rendered. The prosecution cannot be understood without knowledge of anterior action. Nothing more unjust could be imagined than to pick out
certain words which standing by themselves and unexplained are libelous and then by shutting off all knowledge of facts which would justify these
words, to convict the accused. The records in question are attached to the rollo, and either on the ground that the attorneys for the defense retired the
objection to the introduction of the administrative proceedings by the prosecution, or that a new trial should have been had because under section 42 of
the Code of Criminal Procedure "a case may be reopened on account of errors at law committed at the trial," or because of the right of this court to call
in such records as are sufficiently incorporated into the complaint and are essential to a determination of the case, or finally, because of our conceded
right to take judicial notice of official action in administrative cases and of judicial proceedings supplemental to the basis action, we examine the record
as before us, containing not alone the trial for libel, but the proceedings previous to that trial giving rise to it. To this action, the Government can not
explain for it was the prosecution which tried to incorporate Exhibit A into the record.

With these facts pleading justification, before testing them by certain principles which make up the law of libel and slander, we feel warranted in seizing
the opportunity to intrude an introductory and general discussion of freedom of speech and press and assembly and petition in the Philippine Islands.
We conceive that the time is ripe thus to clear up certain misapprehensions on the subject and to place these basic rights in their proper light.

Turning to the pages of history, we state nothing new when we set down that freedom of speech as cherished in democratic countries was unknown in
the Philippine Islands before 1900. A prime cause for revolt was consequently ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The
Philippines a Century Hence, pages 62 et seq.) describing "the reforms sine quibus non," which the Filipinos insist upon, said: "

The minister, . . . who wants his reforms to be reforms, must begin by declaring the press in the Philippines free and by instituting Filipinos
delegates.

The Filipino patriots in Spain, through the columns of "La Solidaridad" and by other means invariably in exposing the wants of the Filipino people
demanded "liberty of the press, of cults, and associations." (See Mabini, La Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary
Congress, in its Bill of Rights, zealously guarded freedom of speech and press and assembly and petition.

Mention is made of the foregoing data only to deduce the proposition that a reform so sacred to the people of these Islands and won at so dear a cost,
should now be protected and carried forward as one would protect and preserve the covenant of liberty itself.

Next comes the period of American-Filipino cooperative effort. The Constitution of the United States and the State constitutions guarantee to the right of
freedom of speech and press and the right of assembly and petition. We are therefore, not surprised to find President McKinley in that Magna Charta of
Philippine Liberty, the Instructions to the Second Philippine Commission, of April 7, 1900, laying down the inviolable rule "That no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a redress of
grievances."

The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law, the Act of Congress of August 29, 1916, in the nature of organic acts for the
Philippines, continued this guaranty. The words quoted are not unfamiliar to students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American people demanded before giving their approval to the Constitution.

We mention the foregoing facts only to deduce the position never to be forgotten for an instant that the guaranties mentioned are part and parcel of the
Organic Law — of the Constitution — of the Philippine Islands.

These paragraphs found in the Philippine Bill of Rights are not threadbare verbiage. The language carries with all the applicable jurisprudence of great
English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U. S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these
principles? Volumes would inadequately answer. But included are the following:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Completely liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-
skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted. Of course, criticism
does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising
superior to any official or set of officials, to the Chief of Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government —
public opinion should be the constant source of liberty and democracy. (See the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73;
Seymour vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)

The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or
a judge the same as any other public officer, public opinion will be effectively muzzled. Attempted terrorization of public opinion on the part of the
judiciary would be tyranny of the basest sort. The sword of Damocles in the hands of a judge does not hang suspended over the individual who dares to
assert his prerogative as a citizen and to stand up bravely before any official. On the contrary, it is a duty which every one owes to society or to the State
to assist in the investigation of any alleged misconduct. It is further the duty of all who know of any official dereliction on the part of a magistrate or the
wrongful act of any public officer to bring the facts to the notice of those whose duty it is to inquire into and punish them. In the words of Mr. Justice
Gayner, who contributed so largely to the law of libel. "The people are not obliged to speak of the conduct of their officials in whispers or with bated
breath in a free government, but only in a despotism." (Howarth vs. Barlow [1906], 113 App. Div., N. Y., 510.)

The right to assemble and petition is the necessary consequence of republican institutions and the complement of the part of free speech. Assembly
means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. Petition means that any person or group of persons
can apply, without fear of penalty, to the appropriate branch or office of the government for a redress of grievances. The persons assembling and
petitioning must, of course, assume responsibility for the charges made.

Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine of privilege.
 The doctrine of privileged communications rests upon public policy, 'which looks to the free and unfettered administration of justice, though, as
an incidental result, it may in some instances afford an immunity to the evil-disposed and malignant slanderer.' (Abbott vs. National Bank of
Commerce, Tacoma [1899], 175 U. S., 409, 411.)

Privilege is classified as either absolute or qualified. With the first, we are not concerned. As to qualified privilege, it is as the words suggest a prima
facie privilege which may be lost by proof of malice. The rule is thus stated by Lord Campbell, C. J.

A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which has a
duty, is privileged, if made to a person having a corresponding interest or duty, although it contained criminatory matter which without this
privilege would be slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N. S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C.
L., 344.)

A pertinent illustration of the application of qualified privilege is a complaint made in good faith and without malice in regard to the character or conduct
of a public official when addressed to an officer or a board having some interest or duty in the matter. Even when the statements are found to be false, if
there is probable cause for belief in their truthfulness and the charge is made in good faith, the mantle of privilege may still cover the mistake of the
individual. But the statements must be made under an honest sense of duty; a self-seeking motive is destructive. Personal injury is not necessary. All
persons have an interest in the pure and efficient administration of justice and of public affairs. The duty under which a party is privileged is sufficient if it
is social or moral in its nature and this person in good faith believes he is acting in pursuance thereof although in fact he is mistaken. The privilege is not
defeated by the mere fact that the communication is made in intemperate terms. A further element of the law of privilege concerns the person to whom
the complaint should be made. The rule is that if a party applies to the wrong person through some natural and honest mistake as to the respective
functions of various officials such unintentional error will not take the case out of the privilege.

In the usual case malice can be presumed from defamatory words. Privilege destroy that presumption. The onus of proving malice then lies on the
plaintiff. The plaintiff must bring home to the defendant the existence of malice as the true motive of his conduct. Falsehood and the absence of probable
cause will amount to proof of malice. (See White vs. Nicholls [1845], 3 How., 266.)

A privileged communication should not be subjected to microscopic examination to discover grounds of malice or falsity. Such excessive scrutiny would
defeat the protection which the law throws over privileged communications. The ultimate test is that of bona fides. (See White vs. Nicholls [1845], 3
How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163; Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability, vol. 1, pp. 308,
309; Newell, Slander and Libel, various citations; 25 Cyc. pages 385 et seq.)

Having ascertained the attitude which should be assumed relative to the basic rights of freedom of speech and press and of assembly and petition,
having emphasized the point that our Libel Law as a statute must be construed with reference to the guaranties of our Organic Law, and having
sketched the doctrine of privilege, we are in a position to test the facts of this case with these principles.

It is true that the particular words set out in the information, if said of a private person, might well be considered libelous per se. The charges might also
under certain conceivable conditions convict one of a libel of a government official. As a general rule words imputing to a judge or a justice of the peace
dishonesty or corruption or incapacity or misconduct touching him in his office are actionable. But as suggested in the beginning we do not have present
a simple case of direct and vicious accusations published in the press, but of charges predicated on affidavits made to the proper official and thus
qualifiedly privileged. Express malice has not been proved by the prosecution. Further, although the charges are probably not true as to the justice of the
peace, they were believed to be true by the petitioners. Good faith surrounded their action. Probable cause for them to think that malfeasance or
misfeasance in office existed is apparent. The ends and the motives of these citizens— to secure the removal from office of a person thought to be venal
— were justifiable. In no way did they abuse the privilege. These respectable citizens did not eagerly seize on a frivolous matter but on instances which
not only seemed to them of a grave character, but which were sufficient in an investigation by a judge of first instance to convince him of their
seriousness. No undue publicity was given to the petition. The manner of commenting on the conduct of the justice of the peace was proper. And finally
the charges and the petition were submitted through reputable attorneys to the proper functionary, the Executive Secretary. In this connection it is
sufficient to note that justices of the peace are appointed by the Governor-General, that they may be removed by the Governor-General upon the
recommendation of a Judge of First Instance, or on the Governor-General's own motion, and that at the time this action took place the Executive Bureau
was the office through which the Governor-General acted in such matter. (See Administrative Code of 1917, secs. 203 and 229, in connection with the
cases of U. S. vs. Galesa [1915], 31 Phil., 365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where defendant was subject to removal by the
sovereign, a communication to the Secretary of State was privileged.)

The present facts are further essentially different from those established in other cases in which private individuals have been convicted of libels of
public officials. Malice, traduction, falsehood, calumny, against the man and not the officer, have been the causes of the verdict of guilty. (See U. S. vs.
Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513; U. S. vs. Montalvo [1915], 29 Phil., 595.)

The Attorney-General bases his recommendation for confirmation on the case of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio
Bustos case, the Attorney-General says, is identical with the Felipe Bustos case, with the exception that there has been more publicity in the present
instance and that the person to whom the charge was made had less jurisdiction than had the Secretary of Justice in the Julio Bustos case. Publicity is
immaterial if the charge against Punsalan is in fact a privileged communication. Moreover, in the Julio Bustos case we find wild statements, with no basis
in fact, made against reputable members of the judiciary, "to persons who could not furnish protection." Malicious and untrue communications are not
privileged. A later case and one more directly in point to which we invite especial attention is United States vs. Galeza ([1915], 31 Phil., 365). (Note
alsoYancey vs. Commonwealth [1909], 122 So. W., 123.)

We find the defendants and appellants entitled to the protection of the rules concerning qualified privilege, growing out of constitutional guaranties in our
bill of rights. Instead of punishing citizens for an honest endeavor to improve the public service, we should rather commend them for their good
citizenship. The defendants and appellants are acquitted with the costs de officio. So ordered.

G.R. No. L-16027 May 30, 1962

LUMEN POLICARPIO, plaintiff-appellant,

vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.

Mario Bengzon for plaintiff-appellant.

Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and defendants' counterclaim, without special
pronouncement as to costs. Originally certified to the Court of Appeals, the record on appeal was subsequently forwarded to us in view of the amount
involved in the complaint (P300,000.00).
Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as moral damages, P60,000 as correctional and exemplary
damages, and P20,000, as attorney's fees, aside from the costs, by reason of the publication in the Saturday Mirror of August 11, 1956, and in the Daily
Mirror of August 13, 1956, of two (2) articles or news items which are claimed to be per se defamatory, libelous and false, and to have exposed her to
ridicule, jeopardized her integrity, good name and business and official transactions, and caused her grave embarrassment, untold and extreme moral,
mental and physical anguish and incalculable material, moral, professional and business damages. The defendants are The Manila Times Publishing
Co., Inc., as publisher of The Saturday Mirror and The Daily Mirror, which are newspapers of general circulation in the Philippines, and Constante C.
Roldan, Manuel V. Villa-Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article and the managing editor, the associate
editor and the news editor, respectively, of said newspapers.

After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in which the present action was initiated, the
defendants filed a joint answer admitting the formal allegations of the complaint, denying the other allegations thereof, alleging special defenses and
setting up a counterclaim for P10,000, as attorney's fees and expenses of litigation. In due course, later on, said court rendered the aforementioned
decision, upon the ground that plaintiff had not proven that defendants had acted maliciously in publishing the aforementioned articles, although portions
thereof were inaccurate or false.

Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto, she was executive secretary of the local
UNESCO National Commission. As such officer, she had preferred charges against Herminia D. Reyes, one of her subordinates in said Commission,
and caused her to be separated from the service. Miss Reyes, in turn, preferred counter-charges which were referred to Col. Crisanto V. Alba, a Special
Investigator in the Office of the President. Pending completion of the administrative investigation, which began in June, 1956, Miss Reyes filed with the
Office of the City Fiscal of Manila, on August 8, 1956, a complaint against the plaintiff for alleged malversation of public funds and another complaint for
alleged estafa thru falsification of public documents, which were scheduled for investigation by said office on August 22, 1956, at 2:00 p.m. Meanwhile,
or on August 11, 1956, the following appeared, with a picture of the plaintiff, in the front page of The Saturday Mirror:

WOMAN OFFICIAL SUED

PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague

By Constante C. Roldan

Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with malversation and estafa in complaints filed with the
city fiscal's office by the Presidential Complaints and Action Commission today.

The criminal action was initiated as a result of current administrative investigation against the Unesco official being conducted by Col. Crisanto V. Alba,
Malacañan technical assistant, on charges filed by Herminia D. Reyes, a Unesco confidential assistant. The Unesco commission functions under the
Office of the President.

Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the charges on August 22 at 2 p.m.
Colonel Alba, in turn, indicated that the administrative phase of the inquiry will continue Monday and then resume on August 21 at Malacañan Park. The
Palace Investigator said there are other charges, but would not specify these.

Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony had allegedly indicated that the
accused had used Unesco stencils for private and personal purposes. Specification reputedly said that Miss Policarpio had taken stencils from the
Unesco storeroom and used these for French lessons not at all connected with Unesco work; for the preparation of contracts of sale of pianos in her
business establishment; for preparation of invitations sent to members of the League of Women Voters of which she is one of the officers.

Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas, Federico Vergara and Pablo Armesto both of
the Unesco.1äwphï1.ñët

Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in 1955, Miss Policarpio was accused of
having collected expenses for supposed trips. The accusation said the Unesco official had sought reimbursement of expenses for a trip to Baler,
Quezon, on Aug. 19, last year, representing expenses of her car when in fact she supposedly rode in an army plane.

Testimony indicated that a newspaper woman who was a supposed co-passenger had even written about the plane trip in her newspaper column. The
same voucher also allegedly collected expenses for going to a Unesco Bayambang (Pangasinan) project, although records reputedly showed that she
was absent in that conferences.

Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente Antonio and others, also of the PAF.

Miss Policarpio becomes the second high-ranking woman government official to face charges involving financial disbursements in their office. The first
was Sen. Pacita M. Gonzales who is still under charge mis-spending funds of the Social Welfare Administration and the UNAC while she had charge of
these.

The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on charges including conduct "unbecoming a lady",
and as a result had not been paid her salary. She appealed to Malacañan which dismissed her suit and later she sued before Judge Rafael Amparo to
compel payment of her salary. The court also rejected her plea on the ground that she had not exhausted all administrative remedies, the Palace not
having made a clearcut decision on her case.

The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of plaintiff and of Miss Reyes, taken during the administrative
investigation being conducted by Col. Alba — another news item, reading:

"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO

Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.

The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco national commission here, opened in Malacañan
before Col. Crisanto V. Alba.

The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacañan case before the Presidential Complaints and Action
Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.
Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently sought reimbursement of supposed official
expenses.

Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he nor the PCAC had initiated the criminal action before the city
fiscal's office. The complaint before the fiscal was started by an information she naming Herminia D. Reyes as complainant and citing other persons as
witnesses. Fiscal Reyes set preliminary investigation of these charges for Aug. 22.

Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss Policarpio allegedly used several sheets of
government stencils for her private and personal use, such as for French lessons, contracts of sale of pianos and for invitations of the League of Women
Voters of which she (Miss Policarpio) is an officer. The Unesco commission here functions under the Office of the President.

The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.

Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing complainant Miss Reyes, petitioned for the
suspension of Miss Policarpio, executive secretary of the Unesco.

Alba did not act immediately on the petition. He said he was holding a hearing on the petition on August 15.

During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of the PCAC who brought with him 18 sheets of
stencil which were allegedly used by Miss Policarpio for her personal use. These sheets were admitted as temporary exhibits.

The second witness was Federico Vergara of the Unesco who said that he received four of the 18 sheets, but he could not identify which of the sheets
he had received.

The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss Policarpio.

The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio for a trip to Quezon Province and to Pangasinan.
On the first, Miss Reyes' complaint alleged the Unesco official had asked for refund of expenses for use of her car when, Miss Reyes claimed she had
actually made the trip aboard an army plane.

Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also sought allegedly refund of expenses.

The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had later sued at the Palace and before the Court for
payment of her salary.

The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was given prominence with a 6-column (about 11 inches) banner headline of
one-inch types. Admittedly, its sub-title — "PCAC RAPS L. POLICARPIO PIO ON FRAUD" — printed in bold one-centimeter types, is not true. Similarly,
the statement in the first paragraph of the article, to the effect that plaintiff "was charged with malversation and estafa in complaints filed with the city
fiscal's office by the Presidential Complaint and Action Commission" — otherwise known as PCAC — is untrue, the complaints for said offenses having
been filed by Miss Reyes. Neither is it true that said "criminal action was initiated as a result of current administrative, investigation", as stated in the
second paragraph of the same article.

Plaintiff maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba had shown that plaintiff
was guilty, or, at least, probably guilty of the crimes aforementioned, and that, as a consequence, the PCAC had filed the corresponding complaints with
the city fiscal's office. She alleges, also, that although said article indicates that the charges for malversation and for estafa through falsification against
her referred, respectively, to the use by her of Unesco stencils allegedly for private and personal purposes, and to the collection of transportation
expenses, it did not mention the fact that the number of stencils involved in the charge was only 18 or 20, that the sum allegedly misappropriated by her
was only P54, and that the falsification imputed to her was said to have been committed by claiming that certain expenses for which she had sought and
secured reimbursement were incurred in trips during the period from July 1, 1955 to September 30, 1955, although the trips actually were made,
according to Miss Reyes, from July 8 to August 31, 1955. By omitting these details, plaintiff avers, the article of August 11, 1956, had the effect of
conveying the idea that the offenses imputed to her were more serious than they really were. Plaintiff, likewise, claims that there are other inaccuracies
in the news item of August 13, 1956, but, we do not deem it necessary to dwell upon the same for the determination of this case.

Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were filed, not by the PCAC, but by Miss Reyes, this
inaccuracy is insignificant and immaterial to the case, for the fact is that said complaints were filed with said office. As regards the number of sheets of
stencil allegedly misused and the amount said to have been misappropriated by plaintiff, as well as the nature of the falsification imputed to her,
defendants argue that these "details" do not affect the truthfulness of the article as a whole, and that, in any event, the insignificant value of said sheets
of stencil and the small amount allegedly misappropriated, would have had, if set forth in said article, a greater derogatory effect upon the plaintiff, aside
from the circumstance that defendants had no means of knowing such "details". It appears, however, that prior to August 11, 1956, Col. Alba had
already taken the testimony of Antonio P. Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss Reyes. Hence, defendants could have
ascertained the "details" aforementioned, had they wanted to. Indeed, some of the defendants and/or their representatives had made appropriate
inquiries from Col. Alba before said date, and some "details" — though not those adverted to above — appear in the article then published, whereas the
number of sheets of stencil allegedly misused was mentioned in the news item of August 13, 1956.

Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the amount of the damage caused to the
offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or value of the property embezzled is material to said offense.

Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of the Government, like the PCAC, particularly after
an investigation conducted by the same, imparts the ideal that the probability of guilty on the part of the accused is greater than when the complaints are
filed by a private individual, specially when the latter is a former subordinate of the alleged offender, who was responsible for the dismissal of the
complainant from her employment. It is only too apparent that the article published on August 11, 1956, presented the plaintiff in a more unfavorable light
than she actually was.

It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event should be presented
to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational manner is not per se illegal.
Newspaper may publish news items relative to judicial, legislative or other official proceedings, which are not of confidential nature, because the public is
entitled to know the truth with respect to such proceedings, which, being official and non-confidential, are open to public consumption. But, to enjoy
immunity, a publication containing derogatory information must be not only true, but, also, fair, and it must be made in good faith and without any
comments or remarks.

Defendants maintain that their alleged malice in publishing the news items in question had not been established by the plaintiff. However, Article 354 of
the Revised Penal Code, provides:
 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 not 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 other functions.

In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956, presented her in a worse
predicament than that in which she, in fact, was. In other words, said article was not a fair and true report of the proceedings there in alluded to. What is
more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment or remark, besides being false. Accordingly, the defamatory
imputations contained in said article are "presumed to be malicious".

Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely stating that the complaints had been filed with the
Office of the City Fiscal by the PCAC as a result of the administrative investigation of Col. Alba? Either they knew the truth about it or they did not know
it. If they did, then the publication would be actually malicious. If they did not or if they acted under a misapprehension of the facts, they were guilty of
negligence in making said statement, for the consequences of which they are liable solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the
Philippines; 17 R.C.L. sec. 95, p. 349).

We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba nor
the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in said
complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the first article, although it may and
should mitigate it (Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the interest of justice and of all parties concerned would be served if the
defendants indemnify the plaintiff in the sums of P3,000, by way of moral damages, and P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein to pay jointly and
severally to the plaintiff the aforementioned sums of P3,000, as moral damages, and P2,000, by way of attorney's fees, in addition to the costs. It is so
ordered.

G.R. No. L-26549 July 31, 1970

EUGENIO LOPEZ, publisher and owner of the "MANILA, CHRONICLE and JUAN T. GATBONTON, petitioners,
vs.
THE HON. COURT OF APPEALS and FIDEL G. CRUZ, respondents.

Salonga, Ordoñez, Sicat & Associates for petitioners.

FERNANDO, J.:

There is an element of novelty in this appeal by certiorari from a decision of respondent Court of Appeals holding petitioners, the then publisher and
editor of This Week Magazine, liable in damages to the tune of eleven thousand pesos arising from the publication of a picture of respondent, Fidel G.
Cruz, as being responsible for the hoax of the year. The absence of any connection either fanciful or remote with such event is admitted. The view is
pressed by petitioners, invoking a liberal construction of the implications of press freedom, owning up to the mistake, unfortunately not discovered until it
was too late, and publishing a correction as an earnest of its good faith, that they should not be made to pay at all. This Court, without discounting the
elements of plausibility of their contention, cannot, however, close its eyes to the injury inflicted on respondent and indulge them in such a plea. It is not
disposed though to affirm respondent Court's decision in its entirety. Considering all the circumstances, the damages awarded to private respondent
appear to be far too generous. A reduction is in order. The sum of one thousand pesos would be enough. So we decide.

The antecedents of the case follow: In the early part of January, 1956, there appeared on the front page of The Manila Chronicle, of which petitioner
Eugenio Lopez was the publisher, as well as on other dailies, a news story of a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz by name,
sending a distress signal to a passing United States Airforce plane which in turn relayed the message to Manila. He was not ignored, an American Army
plane dropping on the beach of an island an emergency-sustenance kit containing, among other things, a two-way radio set. He utilized it to inform
authorities in Manila that the people in the place were living in terror, due to a series of killings committed since Christmas of 1955. Losing no time, the
Philippines defense establishment rushed to the island a platoon of scout rangers led by Major Wilfredo Encarnacion. Upon arriving at the reported killer-
menaced Babuyan Claro, however, Major Encarnacion and his men found, instead of the alleged killers, a man, the same Fidel Cruz, who merely
wanted transportation home to Manila. In view of this finding, Major Wilfredo Encarnacion branded as a "hoax," to use his own descriptive word, the
report of Fidel Cruz. That was the term employed by the other newspapers when referring to the above-mentioned incident.

This Week Magazine of the Manila Chronicle, then edited by petitioner Juan T. Gatbonton, devoted a pictorial article to it in its issue of January 15, 1956.
Mention was made that while Fidel Cruz story turned out to be false if brought to light the misery of the people living in that place, with almost everybody
sick, only two individuals able to read and write, food and clothing being scarce. Then in the January 29, 1956 issue of This Week Magazine, the
"January News Quiz" included an item on the central figure in what was known as the Calayan Hoax, who nevertheless did the country a good turn by
calling the government's attention to that forsaken and desolate corner of the Republic. Earlier in its Special Year End Quiz appearing in its issue of
January 13, 1956, reference was made to a health inspector who suddenly felt "lonely" in his isolated post, cooked up a story about a murderer running
loose on the island of Calayan so that he could be ferried back to civilization. He was given the appellation of "Hoax of the Year."

The magazine on both occasions carried photographs of the person purporting to be Fidel Cruz. Unfortunately, the pictures that were published on both
occasions were that of private respondent Fidel G. Cruz, a businessman contractor from Santa Maria, Bulacan. It turned out that the photographs of
respondent Cruz and that of Fidel Cruz, sanitary inspector, were on file in the library of the Manila Chronicle in accordance with the standard procedure
observed in other newspaper offices, but when the news quiz format was prepared, the two photographs were in advertently switched.

As soon, however, as the inadvertent error was brought to the attention of petitioners, the following correction was immediately published in This Week
Magazine on January 27, 1957: "While we were rushing to meet: the deadline for January 13th issue of This Week, we inadvertently published the
picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in 'Our Own Who's Who feature in the Year End Quiz' of This
Week in lieu of the health inspector Fidel Cruz, who was connected with a story about a murderer running loose on Calayan Island. We here express our
profound regrets that such an error occurred." Together with the foregoing correction, petitioners published the picture of Fidel Cruz; the photographs
and the correction moreover were enclosed by four lines the type used was bolder than ordinary, and the item was placed in a conspicuous place in
order to call the attention of the readers to such amends being made. 1

Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of Manila for the recovery of damages alleging the defamatory character of the
above publication of his picture. After trial duly had, he was awarded five thousand pesos as actual damages, another five thousand pesos as moral
damages, and one thousand pesos for attorney's fees. That judgment was affirmed on appeal to respondent Court. Hence, this petition for certiorari with
the result, as already announced at the opening of this opinion, that while respondent Cruz is entitled to Prevail, the damages awarded him should be
reduced.

1. It is on the freedom of the press that petitioners would stake their case to demonstrate that no action for libel would lie arising from the publication of
the picture of respondent Cruz identified as responsible for the hoax of the year, when such was not the case at all. It is easily understandable why. No
liability would be incurred if it could be demonstrated that it comes within the well-nigh all embracing scope of freedom of the press. Included therein is
the widest latitude of choice as to what items should see the light of day so long as they are relevant to a matter of public interest, the insistence on the
requirement as to its truth yielding at times to unavoidable inaccuracies attendant on newspapers and other publications being subject to the tyranny of
deadlines. If no such showing could be plausibly made, however, it is difficult to resist the conclusion that there was in fact the commission of such
quasi-delict. It was held in Lu Chu Sing v. Lu Tiong Gui,2 that "the repeal of the old Libel Law (Act No. 277) did not abolish the civil action for libel."3 A
libel was defined in that Act as a "malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, ..., tending to blacken the
memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural defects of one who is alive, and thereby
"pose him to public hatred, contempt, or ridicule,"4 There was an express provision in such legislation for a tort or a quasi-delict action arising from
libel.5 There is reinforcement to such a view in the new Civil Code providing for the recovery of moral damages for libel, slander or any other form of
defamation.6

There has been no time then in our judicial history when civil actions for libel did not form a staple part of litigations which had reached this Court.7 Such
is the case in a far greater measure in the United States. According to the standard treatise of Newell on Slander and Libel: "Publication of a person's
photograph in connection with an article libelous of a third person, is a libel on the person whose picture is published, where the acts set out in the article
are imputed to such person."8 In support of the above statement, he made reference to several cases.9 Other decisions to the same effect have been
promulgated since the fourth edition of Newell published in 1924. 1 0 Why libel law has both a criminal and a civil aspect is explained by Hale in his Law
of the Press thus: "On the one hand, libeling a person results in depriving him of his good reputation. Since reputation is a thing of value, truly rather to
be chosen than great riches , an impairment of it is a personal wrong. To redress this personal wrong money damages are awarded to the injured
person. On the other hand, the publication of defamatory statements tends strongly to induce breach of the peace by the person defamed, and hence is
of peculiar moment to the state as the guardian of the public peace. Viewed from this angle, libel is a crime, and as such subjects the offender to a fine
or imprisonment." 11

The first decision cited by Newell is a decision of Justice Holmes. The case is Peck v. Tribune Co. 1 2 Plaintiff there complained of her picture being
published in an advertisement in defendant's newspaper. The Chicago Sunday Tribune, with certain words of commendation for a brand of liquor
attributed to her when in fact she did not make such a statement at all and could not have made it, as she was a total abstainer. The defendant was held
liable, for as Justice Holmes pointed out: "There was some suggestion that the defendant published the portrait by mistake, and without knowledge that
it was the plaintiff's portrait, or was not what it purported to be. But the fact, if it was one, was no excuse. If the publication was libelous, the defendant
took the risk. As was said of such matters by Lord Mansfield, 'Whenever a man publishes, he publishes at his peril.' ... The reason is plain. A libel is
harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an
advertisement or a piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of someone else." 1 3

Learned Hand, in holding that an action for libel would lie arising from a publication in an advertisement of plaintiff's photograph yielding a "grotesque
monstrous and obscene impression" and that he was "substantially enough ridiculed" to complain reached the conclusion "that because the picture
taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable; that the fact that it did not assume
to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable." 1 4 It is likewise an accepted fact that such publications
do occasion greater injury to reputation than would mere words alone. Cardozo so aptly put the matter thus: "'It has its genesis in evils which the years
have not erased. Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught
upon the wing and transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one
abide and Perpetuates the scandal.' ... When one speaks of a writing in this connection, one does not limit oneself to writings in manuscripts or books.
Any symbol suffices — Pictures, hieroglyphics shorthand notes — if only what is written is intelligible to him who reads." 1 5

2. That is only one side of the picture, however. There is an impressive recognition in our decisions of the curtailment to which press freedom would be
subjected if an action for libel were not rigorously scrutinized to remove doubts as to its being utilized to penalize the exercise of that constitutional right
Thus, in the first leading case, United States v. Bustos, 1 6 Justice Malcolm could correctly stress: "The interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation: the wound
can be assuaged with the balm of a clear conscience. A public officer must not to be too thin-skinned with reference to comment upon his official acts.
Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as an individual
is less than the State, so must expected criticism be born for the common good." 1 7 On this aspect of the question which, as answered by him, would
require that a criminal suit for libel should not be utilized as a means for stifling press freedom, he categorically declared: "Public policy, the welfare of
society, and the orderly administration of government have demanded protection for public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege." 1 8

In another civil action for libel, such a thought is expressed differently in this wise: "So long as it is done in good faith, newspapers have the legal right to
have and express opinions on legal questions. To deny them that right would infringe upon the freedom of the press." 1 9 The last word on the subject,
up to now at least, came from Quisumbing v. Lopez. 2 0 In the language of the then Chief Justice Paras, who penned the opinion: "The Court of Appeals
found as a fact that "there is no evidence in the record to prove that the publication of the news item under Consideration was prompted by personal ill
will or spite, or that there was intention to do harm,' and that on the other hand there was 'an honest and high sense of duty to serve the best interests of
the public, without self-seeking motive and with malice towards none.' Every citizen of course has the right to enjoy a good name and reputation, but we
do not consider that the respondents, under the circumstances of this case, had violated said right or abused the freedom of the press. The newspapers
should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the
preparation of stories, press reporters and edition usually have to race with their deadlines; and consistently with good faith and reasonable care, they
should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words." 2 1

It was not until 1964 that the United States Supreme Court had occasion to speak its mind on the subject. In the leading case of New York Times Co. v.
Sulivan, 2 2 the nature of the question presented was set forth by Justice Brennan for the Court in the opening paragraph of his opinion: "We are
required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award
damages in a libel action brought by a public official against critics of his official conduct." 2 3 This is the Court's approach to such an issue: "In deciding
the question now, we are compelled by neither precedent nor Policy to give any more weight to the epithet 'libel' than we have to other 'mere labels' of
state law. ... Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other
formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It
must be measured by standards that satisfy the First Amendment." 2 4 Continuing the same trend, the opinion stressed further: "Thus we consider this
case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-
open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... The present
advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the
constitutional protection." 2 5

For liability to arise then without offending press freedom, there is this test to meet: "The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was
made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." 2 6 The United States
Supreme Court went further in Curtis Publishing Co. v. Butts, 2 7 where such immunity, was held as covering statements concerning public figures
regardless of whether or not they are government officials. Why there should be such an extension is understandable in the light of the broad scope
enjoyed by press freedom which certainly allows a full and free discussion of public issues. What can be more logical and appropriate, then, than such
an expansion of the principle. As noted by a commentator: "Since discussion of public issues cannot be meaningful without reference to the men
involved on both sides of such issues, and since such men will not necessarily be public officials, one cannot but agree that the Court was right in Curtis
to extend the Times rule to all public figures." 2 8

The significance of the foregoing line of decisions impressive for their consistency is quite obvious. No inroads on press freedom should be allowed in
the guise of punitive action visited on what otherwise could be characterized as libel whether in the form of printed words or a defamatory imputation
resulting from the publication of respondent's picture with the offensive caption as in the case here complained of. This is not to deny that the party
responsible invites the institution either of a criminal prosecution or a civil suit. It must be admitted that what was done did invite such a dire
consequence, considering the value the law justly places on a man's reputation. This is merely to underscore the primacy that freedom of the press
enjoys. It ranks rather high in the hierarchy of legal values. If the cases moan anything at all then, to emphasize what has so clearly emerged, they call
for the utmost care on the part of the judiciary to assure that in safeguarding the interest of the party allegedly offended a realistic account of the
obligation of a news media to disseminate information of a public character and to comment thereon as well as the conditions attendant on the business
of publishing cannot be ignored. To single out one decision, Quisumbing v. Lopez so speaks in tones loud and clear.

3. It is to the haven thus afforded by such a highly sympathetic ruling to press freedom that petitioners would seek refuge. The defamatory matter
complained of in the Quisumbing case appeared in the headline. It was without basis, as shown by the text of the news item itself. Nonetheless, for the
reasons expressed with vigor and clarity by former Chief Justice Paras, no liability was deemed incurred by the then publisher of the Manila Chronicle A
newspaper, it is stressed, "should not be held to account to a point of suppression for honest mistakes or imperfection in the choice of words." The
above ruling, coupled with the requirement in the New York Times decision of the United States Supreme Court, would for the writer of this opinion,
furnish a sufficient basis for the success of this appeal. The Court, however, is not inclined to view matters thus. Obviously Quisumbing v. Lopez is not
squarely in point. Here there was no pressure of a daily deadline to meet no occasion to act with haste as the picture of respondent was published in a
weekly magazine. Moreover, there is the added requirement of reasonable care imposed by such decision which from the facts here found, appeared
not to be satisfied. It cannot be concluded then that the plea of petitioners is sufficiently persuasive. The mandate of press freedom is not ignored, but
here it does not speak unequivocally. It is not decisive of the basic issue. By itself, it does not have a controlling significance. So we hold.

4. Petitioners would make much, likewise, of their correction, which has all the force of a retraction, as a basis from being absolved from any pecuniary
responsibility. The present Chief Justice in Policarpio v. Manila Times 2 9 restated the controlling principle: "We note that the news item published on
August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba nor the PCAC had filed the aforementioned
complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil involved in said complaints. But, this rectification or
clarification does not wipe out the responsibility arising from the publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes,
27 Phil. 52)." 3 0

The correction promptly made by petitioners would thus call for a reduction in the damages awarded. It should be noted that there was no proof of any
actual pecuniary logs arising from the above publication. It is worthwhile to recall what Justice Malcolm referred to as the tolerant attitude on the part of
appellate courts on this score, the usual practice being "more likely to reduce damages for libel than to increase them." 3 1

WHEREFORE, the decision of respondent Court of Appeals of August 25, 1966 affirming the lower court decision of March 22, 1958 is hereby modified,
petitioners Eugenio Lopez and Juan T. Gatbonton being ordered to pay jointly and severally the sum of P500.00 as moral damages and the additional
amount of P500.00 for attorney's fees. Costs against petitioners

NY TIMES VS SULLIVAN PERIOD- CHILLING EFFECT

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

New York Times Co. v. Sullivan

No. 39

Argued January 6, 1964

Decided March 9, 1964*

376 U.S. 254

CERTIORARI TO THE SUPREME COURT OF ALABAMA

Syllabus

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate
petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included
statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against
a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police
department. The trial judge instructed the jury that such statements were "libelous per se," legal injury being implied without proof of actual damages,
and that, for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the
statements were found to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere
negligence was not evidence of actual malice, and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or
recklessness had to be found before punitive damages could be awarded, or that a verdict for respondent should differentiate between compensatory
and punitive damages. The jury found for respondent, and the State Supreme Court affirmed.

Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official
conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or
false. Pp. 376 U. S. 265-292.

(a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is "state action" under the Fourteenth
Amendment. P. 376 U. S. 265.

(b) Expression does not lose constitutional protection to which it would otherwise be entitled because it appears in the form of a paid advertisement.
Pp. 376 U. S. 265-266.

Page 376 U. S. 255

(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual
malice" -- knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved. Pp. 376 U. S. 279-283.
(d) State court judgment entered upon a general verdict which does not differentiate between punitive damages, as to which, under state law, actual
malice must be proved, and general damages, as to which it is "presumed," precludes any determination as to the basis of the verdict, and requires
reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 376 U. S. 284.

(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were
made with actual malice or that they related to respondent. Pp. 376 U. S. 285-292.

273 Ala. 656, 144 So.2d 25, reversed and remanded.

Page 376 U. S. 256

MR. JUSTICE BRENNAN delivered the opinion of the Court.

We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to
award damages in a libel action brought by a public official against critics of his official conduct.

Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was

"Commissioner of Public Affairs, and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of
Scales."

He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York
Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County
awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144
So.2d 25.

Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March
29, 1960. [Footnote 1] Entitled "Heed Their Rising Voices," the advertisement began by stating that,

"As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation
of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights."

It went on to charge that,

"in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document
which the whole world looks upon as setting the pattern for modern freedom. . . ."

Succeeding

Page 376 U. S. 257

paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text concluded with an appeal for funds for three
purposes: support of the student movement, "the struggle for the right to vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the
movement, against a perjury indictment then pending in Montgomery.

The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts.
Below these names, and under a line reading "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal," appeared
the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The
advertisement was signed at the bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and
the officers of the Committee were listed.

Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows:

Third paragraph:

"In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and
truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state
authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission."

Sixth paragraph:

"Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home,
almost killing his wife and child. They have

Page 376 U. S. 258

assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with
'perjury' -- a felony under which they could imprison him for ten years. . . ."

Although neither of these statements mentions respondent by name, he contended that the word "police" in the third paragraph referred to him as the
Montgomery Commissioner who supervised the Police Department, so that he was being accused of "ringing" the campus with police. He further
claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students
into submission. [Footnote 2] As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement "They have
arrested [Dr. King] seven times" would be read as referring to him; he further contended that the "They" who did the arresting would be equated with the
"They" who committed the other described acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the
Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and violence," bombing his home, assaulting his person, and
charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his
capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in
Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My

Page 376 U. S. 259

Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol,
but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had
protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing
semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few
who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large
numbers on three occasions, they did not at any time "ring" the campus, and they were not called to the campus in connection with the demonstration on
the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four, and although he claimed to have been
assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was
such an assault.

On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in
the events described. Although Dr. King's home had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated
respondent's tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who
were. Three of Dr. King's four arrests took place before respondent became Commissioner. Although Dr. King had, in fact, been indicted (he was
subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the
indictment.

Page 376 U. S. 260

Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel. [Footnote 3] One of his witnesses, a former
employer, testified that, if he had believed the statements, he doubted whether he "would want to be associated with anybody who would be a party to
such things that are stated in that ad," and that he would not reemploy respondent if he believed "that he allowed the Police Department to do the things
that the paper say he did." But neither this witness nor any of the others testified that he had actually believed the statements in their supposed
reference to respondent. The cost of the advertisement was approximately $4800, and it was published by the Times upon an order from a New York
advertising agency acting for the signatory Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the
Committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to the Times'
Advertising Acceptability Department as a responsible person, and, in accepting the letter as sufficient proof of authorization, it followed its established
practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the 64 names appearing under the text, and
that the statement, "We in the south . . . warmly endorse this appeal," and the list of names thereunder, which included those of the individual petitioners,
were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized
the use of his name, and that he had been unaware of its use until receipt of respondent's demand for a retraction. The manager of the Advertising
Acceptability

Page 376 U. S. 261

Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was
false, and because it bore the endorsement of "a number of people who are well known and whose reputation" he "had no reason to question." Neither
he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories
relating to some of the described events or by any other means.

Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct
unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, § 914. Respondent
served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the
position that he had not authorized the use of his name on the advertisement, and therefore had not published the statements that respondent alleged
had libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that "we . .
. are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you
claim that the statements in the advertisement reflect on you." Respondent filed this suit a few days later without answering the letter. The Times did,
however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the
publication charged him with

"grave misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of
Alabama."

When asked to explain why there had been a retraction for the Governor but not for respondent, the

Page 376 U. S. 262

Secretary of the Times testified:

"We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama, and the Governor was, as far
as we could see, the embodiment of the State of Alabama and the proper representative of the State, and, furthermore, we had by that time learned
more of the actual facts which the and purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education,
presumably of which the Governor is the ex-officio chairman. . . ."

On the other hand, he testified that he did not think that "any of the language in there referred to Mr. Sullivan."

The trial judge submitted the case to the jury under instructions that the statements in the advertisement were "libelous per se," and were not privileged,
so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made "of and
concerning" respondent. The jury was instructed that, because the statements were libelous per se, "the law . . . implies legal injury from the bare fact of
publication itself," "falsity and malice are presumed," "general damages need not be alleged or proved, but are presumed," and "punitive damages may
be awarded by the jury even though the amount of actual damages is neither found nor shown." An award of punitive damages -- as distinguished from
"general" damages, which are compensatory in nature -- apparently requires proof of actual malice under Alabama law, and the judge charged that

"mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages."

He refused to charge, however, that the jury must be "convinced" of malice, in the sense of "actual intent" to harm or "gross negligence and
recklessness," to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive
damages. The judge rejected petitioners' contention
Page 376 U. S. 263

that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments.

In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's rulings and instructions in all respects. 273 Ala. 656, 144 So.2d 25.
It held that,

"where the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable
offense, or tend to bring the individual into public contempt,"

they are "libelous per se"; that "the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff",
and that it was actionable without "proof of pecuniary injury . . . . such injury being implied." Id. at 673, 676, 144 So.2d at 37, 41. It approved the trial
court's ruling that the jury could find the statements to have been made "of and concerning" respondent, stating:

"We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and
direction of the city governing body, and, more particularly, under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body."

Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's determination that the verdict was not excessive, the court said that malice could be
inferred from the Times' "irresponsibility" in printing the advertisement while

"the Times, in its own files, had articles already published which would have demonstrated the falsity of the allegations in the advertisement;"

from the Times' failure to retract for respondent while retracting for the Governor, whereas the falsity of some of the allegations was then known to the
Times and "the matter contained in the advertisement was equally false as to both parties", and from the testimony of the Times' Secretary that,

Page 376 U. S. 264

apart from the statement that the dining hall was padlocked, he thought the two paragraphs were "substantially correct."Id. at 686-687, 144 So.2d at 50-
51. The court reaffirmed a statement in an earlier opinion that "There is no legal measure of damages in cases of this character." Id. at 686, 144 So.2d at
50. It rejected petitioners' constitutional contentions with the brief statements that "The First Amendment of the U.S. Constitution does not protect
libelous publications," and "The Fourteenth Amendment is directed against State action, and not private action." Id. at 676, 144 So.2d at 40.

Because of the importance of the constitutional issues involved, we granted the separate petitions for certiorari of the individual petitioners and of the
Times. 371 U.S. 946. We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to
provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a
public official against critics of his official conduct. [Footnote 4] We

Page 376 U. S. 265

further hold that, under the proper safeguards, the evidence presented in this case is constitutionally insufficient to support the judgment for respondent.

We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the
proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action, and not private action." That
proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law
which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in
a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in
which state power has been applied but, whatever the form, whether such power has, in fact, been exercised. See Ex parte Virginia, 100 U. S. 339, 100
U. S. 346-347; American Federation of Labor v. Swing. 312 U. S. 321.

The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is
concerned, because the allegedly libelous statements were published as part of a paid, "commercial" advertisement. The argument relies on Valentine v.
Chrestensen, 316 U. S. 52, where the Court held that a city ordinance forbidding street distribution of commercial and business advertising matter did
not abridge the First Amendment freedoms, even as applied to a handbill having a commercial message on one side but a protest against certain official
action, on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the constitutional protection for "the freedom of
communicating

Page 376 U. S. 266

information and disseminating opinion"; its holding was based upon the factual conclusions that the handbill was "purely commercial advertising" and
that the protest against official action had been added only to evade the ordinance.

The publication here was not a "commercial" advertisement in the sense in which the word was used in Chrestensen. It communicated information,
expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives
are matters of the highest public interest and concern.See NAACP v. Button, 371 U. S. 415, 371 U. S. 435. That the Times was paid for publishing the
advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Smith v. California, 361 U. S. 147, 361 U. S. 150; cf.
Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 372 U. S. 64, n. 6. Any other conclusion would discourage newspapers from carrying "editorial
advertisements" of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves
have access to publishing facilities -- who wish to exercise their freedom of speech even though they are not members of the press. Cf. Lovell v.
Griffin, 303 U. S. 444, 303 U. S. 452; Schneider v. State, 308 U. S. 147, 308 U. S. 164. The effect would be to shackle the First Amendment in its
attempt to secure "the widest possible dissemination of information from diverse and antagonistic sources." Associated Press v. United States,326 U. S.
1, 326 U. S. 20. To avoid placing such a handicap upon the freedoms of expression, we hold that, if the allegedly libelous statements would otherwise be
constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement.
[Footnote 5]

Page 376 U. S. 267

II
Under Alabama law, as applied in this case, a publication is "libelous per se" if the words "tend to injure a person . . . in his reputation" or to "bring [him]
into public contempt"; the trial court stated that the standard was met if the words are such as to "injure him in his public office, or impute misconduct to
him in his office, or want of official integrity, or want of fidelity to a public trust. . . ." The jury must find that the words were published "of and concerning"
the plaintiff, but, where the plaintiff is a public official, his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation
has been affected by statements that reflect upon the agency of which he is in charge. Once "libel per se" has been established, the defendant has no
defense as to stated facts unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So.
438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So.2d 441, 457-458 (1960). His privilege of "fair comment" for expressions of
opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350
(1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A
showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may, in any event, forestall a punitive award by
a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation
of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So.2d at 458.

Page 376 U. S. 268

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges
the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments.

Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the Constitution does not protect libelous
publications. [Footnote 6] Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions
upon expression critical of the official conduct of public officials. The dictum in Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 348-349, that "when the
statements amount to defamation, a judge has such remedy in damages for libel as do other public servants," implied no view as to what remedy might
constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U. S. 250, the Court sustained an Illinois criminal libel statute as applied to a
publication held to be both defamatory of a racial group and "liable to cause violence and disorder." But the Court was careful to note that it "retains and
exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"; for "public men are, as it were, public
property," and "discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled." Id. at 343 U. S. 263-264, and n. 18. In the
only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was
equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642.

Page 376 U. S. 269

In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere
labels" of state law. NAACP v. Button, 371 U. S. 415, 371 U. S. 429. Like insurrection, [Footnote 7] contempt, [Footnote 8] advocacy of unlawful acts,
[Footnote 9] breach of the peace, [Footnote 10] obscenity, [Footnote 11] solicitation of legal business, [Footnote 12] and the various other formulae for
the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be
measured by standards that satisfy the First Amendment.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.
The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people." Roth v. United States, 354 U. S. 476, 354 U. S. 484.

"The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes
may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system."

Stromberg v. California, 283 U. S. 359, 283 U. S. 369. "[I]t is a prized American privilege to speak one's mind, although not always with perfect good
taste, on all public institutions," Bridges v. California, 314 U. S. 252, 314 U. S. 270, and this opportunity is to be afforded for "vigorous advocacy" no less
than "abstract discussion." NAACP v. Button, 371 U. S. 415,371 U. S. 429.

Page 376 U. S. 270

The First Amendment, said Judge Learned Hand,

"presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To
many, this is, and always will be, folly, but we have staked upon it our all."

United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274
U. S. 357, 274 U. S. 375-376, gave the principle its classic formulation:

"Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American
government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and
that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence
coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution
so that free speech and assembly should be guaranteed."

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials. See Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S. 353,

Page 376 U. S. 271

299 U. S. 365. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly
to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its
alleged defamation of respondent.

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth -- whether
administered by judges, juries, or administrative officials -- and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v.
Randall, 357 U. S. 513, 357 U. S. 525-526. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs
which are offered." NAACP v. Button, 371 U. S. 415, 371 U. S. 445. As Madison said, "Some degree of abuse is inseparable from the proper use of
every thing, and in no instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution (1876), p. 571. In Cantwell v.
Connecticut, 310 U. S. 296, 310 U. S. 310, the Court declared:
"In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to
his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have
been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of
the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens
of a democracy."

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression

Page 376 U. S. 272

are to have the "breathing space" that they "need . . . to survive," NAACP v. Button, 371 U. S. 415, 371 U. S. 433, was also recognized by the Court of
Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678.
Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's libel suit based upon a newspaper article charging him
with anti-Semitism in opposing a judicial appointment. He said:

"Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize
their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not
merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to
Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is
taken from the field of free debate. [Footnote 13]"

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are
involved, this Court has held that concern for the dignity and

Page 376 U. S. 273

reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision.Bridges v. California, 314 U. S. 252.
This is true even though the utterance contains "half-truths" and "misinformation."Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328 U. S. 343, n.
5, 328 U. S. 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331
U. S. 367; Wood v. Georgia,370 U. S. 375. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331
U.S. at 331 U. S. 376, surely the same must be true of other government officials, such as elected city commissioners. [Footnote 14] Criticism of their
official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations.

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two
elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first
crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith,
Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison,

"if any person shall write, print, utter or publish . . . any false, scandalous and malicious

Page 376 U. S. 274

writing or writings against the government of the United States, or either house of the Congress . . . or the President . . . with intent to defame . . . or to
bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United
States."

The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these
qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions
of 1798, the General Assembly of Virginia resolved that it

"doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the 'Alien and Sedition Acts,' passed at
the last session of Congress. . . . [The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and
positively forbidden by one of the amendments thereto -- a power which, more than any other, ought to produce universal alarm because it is leveled
against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly
deemed the only effectual guardian of every other right."

4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of
government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in
reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the
British form, under which the Crown was sovereign and the people were subjects. "Is

Page 376 U. S. 275

it not natural and necessary, under such different circumstances," he asked, "that a different degree of freedom in the use of the press should be
contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said:

"If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the
Government over the people."

4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said:

"In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description,
which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this foundation it yet stands. .
. ."

4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental
principle of the American form of government. [Footnote 15]

Page 376 U. S. 276

Although the Sedition Act was never tested in this Court, [Footnote 16] the attack upon its validity has carried the day in the court of history. Fines levied
in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802,
accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a
matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been
convicted and sentenced under the Act and remitted their fines, stating:

"I discharged every person under punishment or prosecution under the sedition law because I considered, and now consider, that law to be a nullity, as
absolute and as palpable as if Congress had ordered us to fall down and worship a golden image."

Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of
this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U. S. 616, 250 U. S. 630; Jackson, J., dissenting
in Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 288-289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations
(8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the
Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

There is no force in respondent's argument that the constitutional limitations implicit in the history of the Sedition Act apply only to Congress, and not to
the States. It is true that the First Amendment was originally addressed only to action by the Federal Government, and

Page 376 U. S. 277

that Jefferson, for one, while denying the power of Congress "to controul the freedom of the press," recognized such a power in the States. See the 1804
Letter to Abigail Adams quoted in Dennis v. United States, 341 U. S. 494, 341 U. S. 522, n. 4 (concurring opinion). But this distinction was eliminated
with the adoption of the Fourteenth Amendment and the application to the States of the First Amendment's restrictions. See, e.g., Gitlow v. New
York, 268 U. S. 652, 268 U. S. 666; Schneider v. State, 308 U. S. 147, 308 U. S. 160; Bridges v. California, 314 U. S. 252, 314 U. S. 268; Edwards v.
South Carolina,372 U. S. 229, 372 U. S. 235.

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. [Footnote 17] The
fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution
under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for example, has a criminal libel law
which subjects to prosecution "any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the
commission by such person of a felony, or any other indictable offense involving moral turpitude," and which allows as punishment upon conviction a
fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, § 350. Presumably, a person charged with violation of this statute
enjoys ordinary criminal law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not
available to the defendant in a civil action. The judgment awarded in this case -- without the need for any proof of actual pecuniary loss -- was one
thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the
Sedition Act.

Page 376 U. S. 278

And since there is no double jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the
same publication. [Footnote 18] Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon
those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil
libel is

"a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law."

Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70.

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here
than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U. S. 147, we held indispensable to a valid conviction of a
bookseller for possessing obscene writings for sale. We said:

"For, if the bookseller is criminally liable without knowledge of the contents, . . . He will tend to restrict the books he sells to those he has inspected, and
thus the State will have imposed a restriction upon the distribution of constitutionally protected, as well as obscene, literature. . . . And the bookseller's
burden would become the public's burden, for, by restricting him, the public's access to reading matter would be restricted. . . . [H]is timidity in the face of
his absolute criminal liability thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally

Page 376 U. S. 279

suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for
being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded."

( 361 U. S. 361 U.S. 147, 361 U. S. 153-154.) A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do
so on pain of libel judgments virtually unlimited in amount -- leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden
of proving it on the defendant, does not mean that only false speech will be deterred. [Footnote 19] Even courts accepting this defense as an adequate
safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing
Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under
such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in
fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer
far wider of the unlawful zone."Speiser v. Randall, supra, 357 U.S. at 357 U. S. 526. The rule thus dampens the vigor and limits the variety of public
debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made

Page 376 U. S. 280

with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like
rule, which has been adopted by a number of state courts, [Footnote 20] is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281
(1908). The State Attorney General, a candidate for reelection and a member of the commission charged with the management and control of the state
school fund, sued a newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct in connection with a school-
fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff's objection, instructed the jury that

"where an article is published and circulated among voters for the sole purpose of giving what the defendant

Page 376 U. S. 281

believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more
intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article
may be untrue, in fact, and derogatory to the character of the plaintiff, and in such a case the burden is on the plaintiff to show actual malice in the
publication of the article."

In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. On
appeal, the Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P. at 286):

"It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the
state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of
private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times
such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must
be privileged."

The court thus sustained the trial court's instruction as a correct statement of the law, saying:

"In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual
malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of

Page 376 U. S. 282

public concern, public men, and candidates for office."

78 Kan. at 723, 98 P. at 285.

Such a privilege for criticism of official conduct [Footnote 21] is appropriately analogous to the protection accorded a public official when he is sued for
libel by a private citizen. In Barr v. Matteo, 360 U. S. 564, 360 U. S. 575, this Court held the utterance of a federal official to be absolutely privileged if
made "within the outer perimeter" of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate
their lesser officials and qualify the privilege they enjoy. [Footnote 22] But all hold that all officials are protected unless actual malice can be proved. The
reason for the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of
policies of government" and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Barr v.
Matteo, supra, 360 U.S. at 360 U. S. 571. Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to
criticize as it is the official's duty to administer. See Whitney v. California, 274 U. S. 357, 274 U. S. 375 (concurring opinion of Mr. Justice Brandeis),
quoted supra, p. 376 U. S. 270. As Madison said, see supra p. 376 U. S. 275, "the censorial power is in the people over the Government, and not in the
Government over the people." It would give public servants an unjustified preference over the public they serve, if critics of official conduct

Page 376 U. S. 283

did not have a fair equivalent of the immunity granted to the officials themselves.

We conclude that such a privilege is required by the First and Fourteenth Amendments.

III

We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official
conduct. Since this is such an action, [Footnote 23] the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of
actual malice for an award of punitive damages, [Footnote 24] where general damages are concerned malice is "presumed." Such a presumption is
inconsistent

Page 376 U. S. 284

with the federal rule. "The power to create presumptions is not a means of escape from constitutional restrictions," Bailey v. Alabama, 219 U. S.
219, 219 U. S. 239, "the showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff. . .
." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959). [Footnote 25] Since the trial judge did not instruct the jury to differentiate between
general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general
verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded. Stromberg v. California, 283 U. S. 359,283 U. S.
367-368; Williams v. North Carolina, 317 U. S. 287, 317 U. S. 291-292; see Yates v. United States, 354 U. S. 298, 354 U. S. 311-312; Cramer v. United
States, 325 U. S. 1, 325 U. S. 36, n. 45.

Since respondent may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present
record to determine

Page 376 U. S. 285

whether it could constitutionally support a judgment for respondent. This Court's duty is not limited to the elaboration of constitutional principles; we must
also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since
the question is one of alleged trespass across "the line between speech unconditionally guaranteed and speech which may legitimately be
regulated." Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. In cases where that line must be drawn, the rule is that we

"examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the
principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect."

Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335; see also One, Inc., v. Olesen, 355 U. S. 371; Sunshine Book Co. v. Summerfield, 355 U. S. 372.
We must "make an independent examination of the whole record," Edwards v. South Carolina,372 U. S. 229, 372 U. S. 235, so as to assure ourselves
that the judgment does not constitute a forbidden intrusion on the field of free expression. [Footnote 26]

Applying these standards, we consider that the proof presented to show actual malice lacks the convincing

Page 376 U. S. 286

clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule
of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the
use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way
reckless in that regard. The judgment against them is thus without constitutional support.

As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times' Secretary that, apart from the
padlocking allegation, he thought the advertisement was "substantially correct," affords no constitutional warrant for the Alabama Supreme Court's
conclusion that it was a

"cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been impressed with the bad faith of The Times, and its
maliciousness inferable therefrom."

The statement does not indicate malice at the time of the publication; even if the advertisement was not "substantially correct" -- although respondent's
own proofs tend to show that it was -- that opinion was at least a reasonable one, and there was no evidence to impeach the witness' good faith in
holding it. The Times' failure to retract upon respondent's demand, although it later retracted upon the demand of Governor Patterson, is likewise not
adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons
why it does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be
taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point -- a request that respondent chose to
ignore. Nor does the retraction upon the demand of the Governor supply the

Page 376 U. S. 287

necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can retroactively become such by virtue of a retraction
subsequently made to another party. But, in any event, that did not happen here, since the explanation given by the Times' Secretary for the distinction
drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached.

Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The
mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind
required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the
advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good
reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as
a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw
nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of a personal character"; [Footnote
27] their failure to reject it on this ground was not unreasonable. We think

Page 376 U. S. 288

the evidence against the Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to
show the recklessness that is required for a finding of actual malice. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A.2d 440,
446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957).

We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury's finding that the allegedly libelous
statements were made "of and concerning" respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to
establish a connection between it and himself. Thus, in his brief to this Court, he states:

"The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor . . . ; a real
estate and insurance man . . . ; the sales manager of a men's clothing store . . . ; a food equipment man . . . ; a service station operator . . . , and the
operator of a truck line for whom respondent had formerly worked. . . . Each of these witnesses stated that he associated the statements with
respondent. . . ."

(Citations to record omitted.) There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly
libelous statements -- the charges that the dining hall was padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury
prosecution instituted against him -- did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the
word "They," it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts

Page 376 U. S. 289

in question. The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police
functions: that "truckloads of police . . . ringed the Alabama State College Campus" after the demonstration on the State Capitol steps, and that Dr. King
had been "arrested . . . seven times." These statements were false only in that the police had been "deployed near" the campus, but had not actually
"ringed" it, and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling
that these discrepancies between what was true and what was asserted were sufficient to injure respondent's reputation may itself raise constitutional
problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not, on their face, make even
an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent's
witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he
was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought
respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any
statements in the advertisement, and not on any evidence that he had, in fact, been so involved, but solely on the unsupported assumption that,
because of his official position, he must have been. [Footnote 28] This reliance on the bare

Page 376 U. S. 290

fact of respondent's official position [Footnote 29] was made explicit by the Supreme Court of Alabama. That court, in holding that the trial court "did not
err in overruling the demurrer [of the Times] in the aspect that the libelous

Page 376 U. S. 291

matter was not of and concerning the [plaintiff,]" based its ruling on the proposition that:

"We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and
direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body."

273 Ala., at 674-675, 144 So.2d at 39.

This proposition has disquieting implications for criticism of governmental conduct. For good reason,

"no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American
system of jurisprudence."

City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E.

Page 376 U. S. 292

86, 88 (1923). The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face,
into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may
thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, "reflects not
only on me but on the other Commissioners and the community." Raising as it does the possibility that a good faith critic of government will be penalized
for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.
[Footnote 30] We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental
operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect
the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent.

The judgment of the Supreme Court of Alabama is reversed, and the case is remanded to that court for further proceedings not inconsistent with this
opinion.

Reversed and remanded.

Garrison v. Louisiana, 379 U.S. 64 (1964)

Garrison v. Louisiana

No. 4

Argued April 22,1964

Restored to the calendar for reargument June 22, 1964

Reargued October 19, 1964

Decided November 23, 1964

379 U.S. 64

APPEAL FROM THE SUPREME COURT OF LOUISIANA

Syllabus

Appellant, a District Attorney in Louisiana, during a dispute with certain state court judges of his parish, accused them at a press conference of laziness
and inefficiency and of hampering his efforts to enforce the vice laws. A state court convicted him of violating the Louisiana Criminal Defamation Statute,
which, in the context of criticism of official conduct, includes punishment for true statements made with "actual malice" in the sense of ill-will, as well as
false statements if made with ill-will or without reasonable belief that they were true. The state supreme court affirmed the conviction, holding that the
statute did not unconstitutionally abridge appellant's rights of free expression.

Held:

1. The Constitution limits state power to impose sanctions for criticism of the official conduct of public officials, in criminal cases as in civil cases, to false
statements concerning official conduct made with knowledge of their falsity or with reckless disregard of whether they were false or not. New York Times
Co. v. Sullivan, 376 U. S. 254, followed. Pp. 379 U. S. 67-75.

2. Appellant's accusations concerned the judges' official conduct and, did not become private defamation because they might also have reflected on the
judges' private character. Pp. 379 U. S. 76-77.

244 La. 787, 154 So. 2d 400, reversed.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant is the District Attorney of Orleans Parish, Louisiana. During a dispute with the eight judges of

Page 379 U. S. 65

the Criminal District Court of the Parish, he held a press conference at which he issued a statement disparaging their judicial conduct. As a result, he
was tried without a jury before a judge from another parish and convicted of criminal defamation under the Louisiana Criminal Defamation Statute.
[Footnote 1] The principal charges alleged to

Page 379 U. S. 66

be defamatory were his attribution of a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations of the judges, and
his accusation that, by refusing to authorize disbursements to cover the expenses of undercover investigations of vice in New Orleans, the judges had
hampered his efforts to enforce the vice laws. In impugning their motives, he said:

"The judges have now made it eloquently clear where their sympathies lie in regard to aggressive vice investigations by refusing to authorize use of the
DA's funds to pay for the cost of closing down the Canal Street clip joints. . . ."
". . . This raises interesting questions about the racketeer influences on our eight vacation-minded judges. [Footnote 2] "

Page 379 U. S. 67

The Supreme Court of Louisiana affirmed the conviction, 244 La. 787, 154 So.2d 400. The trial court and the State Supreme Court both rejected
appellant's contention that the statute unconstitutionally abridged his freedom of expression. We noted probable jurisdiction of the appeal. 375 U.S. 900.
Argument was first heard in the 1963 Term, and the case was ordered restored to the calendar for reargument, 377 U.S. 986. We reverse.

In New York Times Co. v. Sullivan, 376 U. S. 254, we held that the Constitution limits state power, in a civil action brought by a public official for criticism
of his official conduct, to an award of damages for a false statement "made with "actual malice" -- that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." 376 U.S. at 279-280. At the outset, we must decide whether, in view of the differing history and
purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public
officials. We hold that it does.

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct from those secured by
civil libel laws, and therefore should not be subject to the same limitations. [Footnote 3] At common law, truth was no defense to criminal

Page 379 U. S. 68

libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in reputation by the libel, the speaker was still
punishable, since the remedy was designed to avert the possibility that the utterance would provoke an enraged victim to a breach of peace. That
argument is well stated in Edward Livingston's explanation of the defamation provisions of his proposed penal code for Louisiana:

"In most cases, the connexion between cause and effect exists between the subject of this chapter and that of a subsequent one -- Of Duels.
Defamation, either real or supposed, is the cause of most of those combats, which no laws have yet been able to suppress. If lawgivers had originally
condescended to pay some attention to the passions and feelings of those for whom they were to legislate, these appeals to arms would never have
usurped a power superior to the laws; but by affording no satisfaction for the wounded feelings of honour, they drove individuals to avenge all wrongs of
that description, denied a place in the code of criminal law. Insults formed a title in that of honour, which claimed exclusive jurisdiction of this offence."

Livingston, A System of Penal Law for the State of Louisiana, at 177 (1833). [Footnote 4]

Page 379 U. S. 69

Even in Livingston's day, however, preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, had
substantially eroded the breach of the peace justification for criminal libel laws. In fact, in earlier, more violent, times, the civil remedy had virtually
preempted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual desuetude. [Footnote 5] Changing
mores and the virtual disappearance of criminal libel prosecutions lend support to the observation that,

". . . under modern conditions, when the rule of law is generally accepted as a substitute for private physical measures, it can hardly be urged that the
maintenance of peace requires a criminal prosecution for private defamation."

Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 924 (1963). [Footnote 6] The absence in the Proposed Official Draft of
the Model Penal Code of the American Law Institute of any criminal libel statute on the Louisiana pattern reflects this modern consensus. The ALI
Reporters, in explaining the omission, gave cogent evidence of the obsolescence of Livingston's justification:

"It goes without saying that penal sanctions cannot be justified merely by the fact that defamation is evil

Page 379 U. S. 70

or damaging to a person in ways that entitle him to maintain a civil suit. Usually we reserve the criminal law for harmful behavior which exceptionally
disturbs the community's sense of security. . . . It seems evident that personal calumny falls in neither of these classes in the U.S.A., that it is therefore
inappropriate for penal control, and that this probably accounts for the paucity of prosecutions and the near desuetude of private criminal libel legislation
in this country. . . ."

Model Penal Code, Tent. Draft No. 13, 1961, § 250.7, Comments, at 44.

The Reporters therefore recommended only narrowly drawn statutes designed to reach words tending to cause a breach of the peace, such as the
statute sustained in Chaplinsky v. New Hampshire, 315 U. S. 568, or designed to reach speech, such as group vilification, "especially likely to lead to
public disorders," such as the statute sustained in Beauharnais v. Illinois, 343 U. S. 250. Model Penal Code, supra, at 45. But Louisiana's rejection of the
"clear and present danger" standard as irrelevant to the application of its statute, 244 La. at 833, 154 So.2d at 416, coupled with the absence of any
limitation in the statute itself to speech calculated to cause breaches of the peace, leads us to conclude that the Louisiana statute is not this sort of
narrowly drawn statute.

We next consider whether the historical limitation of the defense of truth in criminal libel to utterances published "with good motives and for justifiable
ends" [Footnote 7]

Page 379 U. S. 71

should be incorporated into the New York Times rule as it applies to criminal libel statutes; in particular, we must ask whether this history permits
negating the truth defense, as the Louisiana statute does, on a showing of

Page 379 U. S. 72

malice in the sense of ill-will. The "good motives" restriction incorporated in many state constitutions and statutes to reflect Alexander Hamilton's
unsuccessfully urged formula in People v. Croswell, 3 Johns.Cas. 337, 352 (N.Y.Supreme Court 1804), liberalized the common law rule denying any
defense for truth. See Ray, Truth: A Defense to Libel, 16 Minn.L.Rev. 43, 46-49 (1931); Kelly, Criminal Libel and Free Speech, 6 Kan.L.Rev. 295, 326-
328 (1958). We need not be concerned whether this limitation serves a legitimate state interest to the extent that it reflects abhorrence that
"a man's forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the
world, on the ground of its being true.?"

9 Hansard, Parliamentary Debates Hist. Eng. 1230 (3d series) (H.L. June 1, 1843) (Report of Lord Campbell) (emphasis supplied). [Footnote 8] In any
event, where the criticism is of

Page 379 U. S. 73

public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the
Constitution, in the dissemination of truth. [Footnote 9] In short, we agree with the New Hampshire court in State v. Burnham, 9 N.H. 34, 42-43, 31
Am.Dec. 217, 221 (1837):

"If, upon a lawful occasion for making a publication, he has published the truth, and no more, there is no sound principle which can make him liable,
even if he was actuated by express malice. . . ."

"It has been said that it is lawful to publish truth from good motives, and for justifiable ends. But this rule is too narrow. If there is a lawful occasion -- a
legal right to make a publication -- and the matter true, the end is justifiable, and that, in such case, must be sufficient."

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching
adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk
that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free
interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict
harm, rather than an intent to inflict harm through falsehood,

"it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded."

Noel, Defamation

Page 379 U. S. 74

of Public Officers and Candidates, 49 Col.L.Rev. 875, 893 (1949). Moreover,

"[i]n the case of charges against a popular political figure . . . , it may be almost impossible to show freedom from ill-will or selfish political motives."

Id. at 893, n. 90. Similar considerations supported our holdings that federal officers enjoy an absolute privilege for defamatory publication within the
scope of official duty, regardless of the existence of malice in the sense of ill-will. Barr v. Matteo, 360 U. S. 564; Howard v. Lyons, 360 U. S. 593; cf.
Gregoire v. Biddle, 177 F.2d 579 (C.A.2d Cir. 1949). What we said of Alabama's civil libel law in New York Times, 376 U.S. at 376 U. S. 282-283,
applies equally to the Louisiana criminal libel rule:

"It would give public servants an unjustified preference over the public they serve if critics of official conduct did not have a fair equivalent of the
immunity granted to the officials themselves."

We held in New York Times that a public official might be allowed the civil remedy only if he establishes that the utterance was false, and that it was
made with knowledge of its falsity or in reckless disregard of whether it was false or true. The reasons which led us so to hold in New York Times, 376
U.S. at 376 U. S. 279-280, apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression
compel application of the same standard to the criminal remedy. Truth may not be the subject of either civil or criminal sanctions where discussion of
public affairs is concerned. And since

". . . erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the 'breathing space' that
they 'need . . . to survive' . . . ,"

376 U.S. at 376 U. S. 271-272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York
Times may be the subject of either civil or criminal sanctions. For speech concerning public affairs is

Page 379 U. S. 75

more than self-expression; it is the essence of self-government. The First and Fourteenth Amendments embody our

"profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270.

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may
further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should
enjoy a like immunity. At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the
deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. Cf. Riesman, Democracy and
Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085, 1088-1111 (1942). That speech is used as a tool for political ends does not
automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that
class of utterances which

"are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality. . . ."

Chaplinsky v. New Hampshire, 315 U. S. 568, 572. Hence, the knowingly false statement and the false statement made with reckless disregard of the
truth do not enjoy constitutional protection.

Page 379 U. S. 76
II

We find no difficulty in bringing the appellant's statement within the purview of criticism of the official conduct of public officials, entitled to the benefit of
the New York Times rule. As the Louisiana Supreme Court viewed the statement, it constituted an attack upon the personal integrity of the judges, rather
than on official conduct. In sustaining the finding of the trial court that the appellant's statement was defamatory, the Louisiana Supreme Court held that

". . . the use of the words 'racketeer influences,' when applied to anyone, suggests and imputes that he has been influenced to practice fraud, deceit,
trickery, cheating, and dishonesty;"

that

"The expression that the judges have enjoyed 300 days vacation out of 19 months suggests and connotes a violation of the 'Deadhead' statute, LSA-
R.S. 14:138, Public Payroll Fraud;"

that "Other expressions set out in the Bill of Information connote malfeasance in office. LSA-R.S. 14:134; Art. IX, Sec. 1, La.Const. of 1921." The court
concluded that

"Defendant's expressions . . . are not criticisms of a court trial or of the manner in which any one of the eight judges conducted his court when in session.
The expressions charged contain personal attacks upon the integrity and honesty of the eight judges. . . ."

244 La. at 834-835, 154 So.2d at 417-418.

We do not think, however, that appellant's statement may be considered as one constituting only a purely private defamation. The accusation concerned
the judges' conduct of the business of the Criminal District Court. [Footnote 10]

Page 379 U. S. 77

Of course, any criticism of the manner in which a public official performs his duties will tend to affect his private, as well as his public, reputation.
The New York Times rule is not rendered inapplicable merely because an official's private reputation, as well as his public reputation, is harmed. The
public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end,
anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty,
malfeasance, or improper motivation, even though these characteristics may also affect the official's private character. [Footnote 11] As the Kansas
Supreme Court said in Coleman v. MacLennan, speaking of candidates:

"Manifestly, a candidate must surrender to public scrutiny and discussion so much of his private character as affects his fitness for office, and the liberal
rule requires no more. But, in measuring the extent of a candidate's profert of character, it should always be remembered that the people have good
authority for believing that grapes do not grow on thorns, nor figs on thistles."

78 Kan. 711, 739, 98 P. 281, 291 (1908).

III

Applying the principles of the New York Times case, we hold that the Louisiana statute, as authoritatively interpreted by the Supreme Court of Louisiana,
incorporates constitutionally invalid standards in the context of criticism of the official conduct of public officials.

Page 379 U. S. 78

For, contrary to the New York Times rule, which absolutely prohibits punishment of truthful criticism, the statute directs punishment for true statements
made with "actual malice," see LSA-R.S. § 14:48; State v. Cox, 246 La. 748, 756, 167 So.2d 352, 355 (1964), handed down after the New York
Times decision; Bennett, The Louisiana Criminal Code, 5 La.L.Rev. 6, 34 (1942). And "actual malice" is defined in the decisions below to mean "hatred,
ill will or enmity or a wanton desire to injure. . . ." 244 La. at 851, 154 So.2d at 423. The statute is also unconstitutional as interpreted to cover false
statements against public officials. The New York Times standard forbids the punishment of false statements, unless made with knowledge of their
falsity or in reckless disregard of whether they are true or false. But the Louisiana statute punishes false statements without regard to that test if made
with ill-will; even if ill-will is not established, a false statement concerning public officials can be punished if not made in the reasonable belief of its truth.
The Louisiana Supreme Court affirmed the conviction solely on the ground that the evidence sufficed to support the trial court's finding of ill-will, enmity,
or a wanton desire to injure. But the trial court also rested the conviction on additional findings that the statement was false, and not made in the
reasonable belief of its truth. The judge said:

"It is inconceivable to me that the Defendant could have had a reasonable belief, which could be defined as an honest belief, that not one, but all eight,
of these Judges of the Criminal District Court were guilty of what he charged them with in the defamatory statement. These men have been honored . . .
with very high offices. . . . It is inconceivable to me that all of them could have been guilty of all of the accusations made against them. Therefore, I do

Page 379 U. S. 79

not believe that the qualified privilege under LSA-R.S., Title 14, Section 49, is applicable. . . ."

This is not a holding applying the New York Times test. The "reasonable belief" standard applied by the trial judge is not the same as the "reckless
disregard of truth" standard. According to the trial court's opinion, a reasonable belief is one which "an ordinarily prudent man might be able to assign a
just and fair reason for"; the suggestion is that, under this test, the immunity from criminal responsibility in the absence of ill-will disappears on proof that
the exercise of ordinary care would have revealed that the statement was false. The test which we laid down in New York Times is not keyed to ordinary
care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.

Reversed.

Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)

Curtis Publishing Co. v. Butts

No. 37
Argued February 23, 1967

Decided June 12, 1967*

388 U.S. 130

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

In No. 37, respondent brought a diversity libel action in federal court seeking compensatory and punitive damages for an article which was published in
petitioner's magazine accusing respondent of conspiring to "fix" a football game between the University of Alabama and the University of Georgia, where
he was privately employed as the athletic director. The article was based upon an affidavit concerning a telephone conversation between respondent
and the Alabama coach which the affiant, Burnett, had accidentally overheard. Respondent challenged the truth of the article and claimed a serious
departure by the magazine from good investigative standards of the accuracy of its charges amounting to reckless and wanton conduct. He submitted
evidence at the trial showing, inter alia, that petitioner's magazine, which had instituted a policy of "sophisticated muckraking," knew that Burnett was on
criminal probation but had published the story without any independent support for his affidavit; that it did not, before publication, view his notes (the
information in which, if not valueless, would be readily available to any coach); that the magazine did not interview a person with Burnett when the phone
call was overheard, view the game films, or check for any adjustments in Alabama's plans after the information was divulged, and that the magazine
assigned the story to a writer not a football expert and made no effort to have such an expert check the story. The jury was instructed on the issue of
truth as a defense and was also instructed that it could award punitive damages and could assess the reliability and the nature of the sources of the
magazine's information and its care in checking the assertions, considerations relevant tn determining whether the magazine had proceeded with
"wanton and reckless indifference." The jury returned a verdict of general and punitive damages which was reduced by remittitur. The trial court rejected
the defense's new trial motion based on New York Times Co. v. Sullivan, 376 U. S. 254 (which was decided after the filing of the complaint in and trial of
this case), holding that decision

Page 388 U. S. 131

inapplicable to one like petitioner not a public official. It also held the evidence amply supported the conclusion that the magazine had acted in reckless
disregard of whether the article was false or not. The Court of Appeals affirmed on the merits. It did not reach the constitutional claim based on New
York Times, holding that petitioner had waived the right to make that challenge, since some of its lawyers had been involved in the latter case, yet the
defense was based solely on the issue of truth. In No. 150, petitioner, a news association, published a dispatch about a massive riot on the University of
Mississippi campus attending federal efforts to enforce a court decree ordering a Negro's enrollment. The dispatch stated that respondent, a politically
prominent figure whose statements on federal intervention had been widely publicized, had taken command of the violent crowd and led a charge
against federal marshals trying to enforce the court's decree, had encouraged violence and given technical advice to the rioters. Respondent brought a
libel action in the Texas state courts for compensatory and punitive damages. Petitioner's defense was based on truth and constitutional rights. The
evidence showed that the dispatch had been made on the scene and almost immediately reported to the petitioner by a competent correspondent. There
was no significant showing of improper preparation of the dispatch, or any prejudice by petitioner or its correspondent. The jury was instructed that
compensatory damages could be awarded if the dispatch was not substantially true and that punitive damages could be added if the article was actuated
by ill will or entire want of care. The jury returned a verdict for both compensatory and punitive damages. The trial court refused to enter an award for the
latter. The court held New York Times inapplicable, but that, if applicable, it would require a verdict for the petitioner, since there was no evidence of
malice. Both sides appealed. The Texas Court of Civil Appeals affirmed, and the Texas Supreme Court denied review.

Held: The judgment in No. 37 is affirmed. The judgment in No. 150 is reversed, and the case remanded. Pp. 133-174.

No. 37, 351 F.2d 702, affirmed; No. 150, 393 S.W.2d 671, reversed and remanded.

MR. JUSTICE HARLAN, joined by MR. JUSTICE CLARK, MR. JUSTICE STEWART, and MR. .JUSTICE FORTAS, concluded that:

1. Petitioner's failure in No. 37 to raise the constitutional defense before trial constituted no waiver of its right to do so after New York Times was
decided. Pp. 388 U. S. 142-145.

Page 388 U. S. 132

2. The New York Times rule prohibiting a public official from recovering damages for defamatory falsehood relating to his official conduct absent actual
malice as therein defined, though necessary there to protect against prosecutions close to seditious libel for criticizing official conduct, should not be
inexorably applied to defamation actions by "public figures" like those here, where different considerations are present. Pp. 388 U. S. 148, 388 U. S.
152-154.

3. A "public figure" who is not a public official may recover damages for defamatory falsehood substantially endangering his reputation on a showing of
highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible
publishers. P. 388 U. S. 155.

4. In view of the court's instructions in No. 37, the jury must have decided that the magazine's investigation was grossly inadequate, and the evidence
amply supported a finding of the highly unreasonable conduct referred to above. Pp. 388 U. S. 156-158.

5. In No. 150, where the courts found the evidence insufficient to support more than a finding of even ordinary negligence, respondent is not entitled to
damages. Pp. 388 U. S. 158-159.

6. Misconduct sufficient to justify compensatory damages also justifies punitive damages; the same constitutional standards apply to both. Pp. 388 U. S.
159-161.

THE CHIEF JUSTICE concluded that:

1. The New York Times standard applies to defamation actions by "public figures" as well as those by "public officials." Pp.388 U. S. 162-165.

2. The judgment in No. 150, being in clear conflict with New York Times, must be reversed. P. 388 U. S. 165.

3. Retrial of No. 37 is not necessary, since the jury's verdict therein, in view of instructions which invoked the elements later held necessary in New York
Times, most probably was based on the requirement of reckless disregard for the truth enunciated in that case. Pp. 388 U. S. 165-167.
4. The overlapping of counsel in No. 37 with counsel in New York Times and in a libel action against petitioner by the Alabama coach, in which a First
Amendment defense was also made, compels the conclusion that the failure to defend on those grounds here was deliberate. Pp. 388 U. S. 167-168.

5. The evidence shows that petitioner in No. 37 acted in reckless disregard for the truth. Pp. 388 U. S. 168-170.

Page 388 U. S. 133

MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that, in order to dispose of No. 150, he concurs in the grounds stated by THE
CHIEF JUSTICE which are summarized in paragraphs 1 and 2, supra, of THE CHIEF JUSTICES conclusions, but does not recede from his previously
expressed views about the much wider press and speech freedoms of the First and Fourteenth Amendments. P. 388 U. S. 170.

MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, concluded that the grounds stated by THE CHIEF JUSTICE which are summarized in
paragraphs 1 and 2, supra, of THE CHIEF JUSTICE's conclusions in No. 150 govern that case. P. 388 U. S. 172.

MR. JUSTICE HARLAN announced the judgments of the Court and delivered an opinion in which MR. JUSTICE CLARK, MR. JUSTICE STEWART, and
MR. JUSTICE FORTAS join.*

In New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 279-280, this Court held that

"[t]he constitutional guarantees

Page 388 U. S. 134

[of freedom of speech and press] require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless
disregard of whether it was false or not."

We brought these two cases here, 385 U.S. 811, 385 U. S. 385 U.S. 812, to consider the impact of that decision on libel actions instituted by persons
who are not public officials, but who are "public figures" and involved in issues in which the public has a justified and important interest. The sweep of
the New York Times rule in libel actions brought under state law was a question expressly reserved in that case, 376 U.S. at 376 U. S. 283, n. 23, and
while that question has been involved in later cases, Garrison v. Louisiana, 379 U. S. 64; Rosenblatt v. Baer, 383 U. S. 75; Time, Inc. v. Hill, 385 U. S.
374, it has not been fully settled.

The matter has, however, been passed on by a considerable number of state and lower federal courts, and has produced a sharp division of opinion as
to whether the New York Times rule should apply only in actions brought by public officials or whether it has a longer reach. Compare, e.g., Pearson v.
Fairbanks Publishing Co., 413 P.2d 711 (Alaska), with Clark v. Pearson,248 F.Supp. 188. [Footnote 1]

Page 388 U. S. 135

The resolution of the uncertainty in this area of libel actions requires, at bottom, some further exploration and clarification of the relationship between
libel law and the freedom of speech and press, lest the New York Times rule become a talisman which gives the press constitutionally adequate
protection only in a limited field, or, what would be equally unfortunate, one which goes far to immunize the press from having to make just reparation for
the infliction of needless injury upon honor and reputation through false publication. These two libel actions, although they arise out of quite different sets
of circumstances, provide that opportunity. We think they are best treated together in one opinion.

No. 37, Curtis Publishing Co. v. Butts, stems from an article published in petitioner's Saturday Evening Post which accused respondent of conspiring to
"fix" a football game between the University of Georgia and the University of Alabama, played in 1962. At the time of the article, Butts was the athletic
director of the University of Georgia, and had overall responsibility for the administration of its athletic program. Georgia is a state university, but Butts
was employed by the Georgia Athletic Association, a private corporation, rather than by the State itself. [Footnote 2] Butts had previously served as head

Page 388 U. S. 136

football coach of the University, and was a well known and respected figure in coaching ranks. He had maintained an interest in coaching, and was
negotiating for a position with a professional team at the time of publication.

The article was entitled "The Story of a College Football Fix," and prefaced by a note from the editors stating:

"Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. . . . Before the University of
Georgia played the University of Alabama . . . , Wally Butts . . . gave [to its coach] . . . Georgia's plays, defensive patterns, all the significant secrets
Georgia's football team possessed."

The text revealed that one George Burnett, an Atlanta insurance salesman, had accidentally overheard, because of electronic error, a telephone
conversation between Butts and the head coach of the University of Alabama, Paul Bryant, which took place approximately one week prior to the game.
Burnett was said to have listened while

"Butts outlined Georgia's offensive plays . . . and told . . . how Georgia planned to defend. . . . Butts mentioned both players and plays by name."

The readers were told that Burnett had made notes of the conversation, and specific examples of the divulged secrets were set out.

The article went on to discuss the game and the players' reaction to the game, concluding that "[t]he Georgia players, their moves analyzed and forecast
like those of rats in a maze, took a frightful physical beating," and said that the players, and other sideline observers, were aware that Alabama was privy
to Georgia's secrets. It set out the series of events commencing with Burnett's later presentation of his notes to the Georgia head coach,

Page 388 U. S. 137

Johnny Griffith, and culminating in Butts' resignation from the University's athletic affairs, for health and business reasons. The article's conclusion made
clear its expected impact:
"The chances are that Wally Butts will never help any football team again. . . . The investigation by university and Southeastern Conference officials is
continuing; motion pictures of other games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure."

Butts brought this diversity libel action in the federal courts in Georgia seeking $5,000,000 compensatory and $5,000,000 punitive damages. The
complaint was filed, and the trial completed, before this Court handed down its decision in New York Times, and the only defense raised by petitioner
Curtis was one of substantial truth. No constitutional defenses were interposed, although Curtis' counsel were aware of the progress of the New York
Times case, and although general constitutional defenses had been raised by Curtis in a libel action instituted by the Alabama coach who was a state
employee.

Evidence at trial was directed both to the truth of the article and to its preparation. The latter point was put in issue by the claim for punitive damages,
which required a finding of "malice" under Georgia law. The evidence showed that Burnett had indeed overheard a conversation between Butts and the
Alabama coach, but the content of that conversation was hotly disputed. It was Butts' contention that the conversation had been general football talk,
and that nothing Burnett had overheard would have been of any particular value to an opposing coach. Expert witnesses supported Butts by analyzing
Burnett's notes and the films of the game itself. The Saturday Evening Post's version of the game and of the players' remarks about the game was
severely contradicted.

Page 388 U. S. 138

The evidence on the preparation of the article, on which we shall focus in more detail later, cast serious doubt on the adequacy of the investigation
underlying the article. It was Butts' contention that the magazine had departed greatly from the standards of good investigation and reporting, and that
this was especially reprehensible, amounting to reckless and wanton conduct, in light of the devastating nature of the article's assertions.

The jury was instructed that, in order for the defense of truth to be sustained, it was "necessary that the truth be substantially portrayed in those parts of
the article which libel the plaintiff." The "sting of the libel" was said to be

"the charge that the plaintiff rigged and fixed the 1962 Georgia-Alabama game by giving Coach Bryant [of Alabama] information which was calculated to
or could have affected the outcome of the game."

The jury was also instructed that it could award punitive damages "to deter the wrongdoer from repeating the trespass" in an amount within its sole
discretion if it found that actual malice had been proved. [Footnote 3]

The jury returned a verdict for $60,000 in general damages and for $3,000000 in punitive damages. The trial court reduced the total to $460,000 by
remittitur. Soon thereafter, we handed down our decision in New York Times, and Curtis immediately brought it to the attention of the trial court by a
motion for new trial. The trial judge rejected Curtis' motion on two grounds. He

Page 388 U. S. 139

first held that New York Times was inapplicable because Butts was not a public official. He also held that

"there was ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or
not."

Curtis appealed to the Court of Appeals for the Fifth Circuit, which affirmed the judgment of the District Court by a two-to-one vote. The majority there did
not reach the merits of petitioner's constitutional claim, holding that Curtis had "clearly waived any right it may have had to challenge the verdict and
judgment on any of the constitutional grounds asserted in Times," 351 F.2d 702, 713, on the basis of Michel v. Louisiana, 350 U. S. 91. It found Curtis
chargeable with knowledge of the constitutional limitations on libel law at the time it filed its pleadings below because of its "interlocking battery of able
and distinguished attorneys" some of whom were involved in the New York Times litigation. This holding rendered the compensatory damage decision
purely one of state law, and no error was found in its application. Turning to the punitive damage award, the majority upheld it as stemming from the
"enlightened conscience" of the jury as adjusted by the lawful action of the trial judge. It was in "complete accord" with the trial court's determination that
the evidence justified the finding "that what the Post did was done with reckless disregard of whether the article was false or not." 351 F.2d at 719.

Judge Rives dissented, arguing that the record did not support a finding of knowing waiver of constitutional defenses. He concluded that the New York
Times rule was applicable because Butts was involved in activities of great interest to the public. He would have reversed because

"the jury might well have understood the district court's charge to allow recovery on a showing of

Page 388 U. S. 140

intent to inflict harm or even the culpably negligent infliction of harm, rather than the intent to inflict harm through falsehood. . . ."

351 F.2d at 723.

Rehearing was denied, 351 F.2d at 733, and we granted certiorari, as indicated above. For reasons given below, we would affirm.

II

No. 150, Associated Press v. Walker, arose out of the distribution of a news dispatch giving an eyewitness account of events on the campus of the
University of Mississippi on the night of September 30, 1962, when a massive riot erupted because of federal efforts to enforce a court decree ordering
the enrollment of a Negro, James Meredith, as a student in the University. The dispatch stated that respondent Walker, who was present on the campus,
had taken command of the violent crowd and had personally led a charge against federal marshals sent there to effectuate the court's decree and to
assist in preserving order. It also described Walker as encouraging rioters to use violence and giving them technical advice on combating the effects of
tear gas.

Walker was a private citizen at the time of the riot and publication. He had pursued a long and honorable career in the United States Army before
resigning to engage in political activity, and had, in fact, been in command of the federal troops during the school segregation confrontation at Little
Rock, Arkansas, in 1957. He was acutely interested in the issue of physical federal intervention, and had made a number of strong statements against
such action which had received wide publicity. Walker had his own following, the "Friends of Walker," and could fairly be deemed a man of some political
prominence.

Walker initiated this libel action in the state courts of Texas, seeking a total of $2,000,000 in compensatory and punitive damages. Associated Press
raised both the
Page 388 U. S. 141

defense of truth and constitutional defenses. At trial, both sides attempted to reconstruct the stormy events on the campus of the University of
Mississippi. Walker admitted his presence on the campus, and conceded that he had spoken to a group of students. He claimed, however, that he had
counseled restraint and peaceful protest, and exercised no control whatever over the crowd, which had rejected his plea. He denied categorically taking
part in any charge against the federal marshals.

There was little evidence relating to the preparation of the news dispatch. It was clear, however, that the author of this dispatch, Van Savell, was actually
present during the events described, and had reported them almost immediately to the Associated Press office in Atlanta. A discrepancy was shown
between an oral account given the office and a later written dispatch, but it related solely to whether Walker had spoken to the group before or after
approaching the marshals. No other showing of improper preparation was attempted, nor was there any evidence of personal prejudice or incompetency
on the part of Savell or the Associated Press.

The jury was instructed that an award of compensatory damages could be made if the dispatch was not substantially true, [Footnote 4] and that punitive
damages could be added if the article was actuated by

"ill will, bad or evil motive, or that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious
indifference to the right or welfare of the person to be affected by it."

A verdict of $500,000 compensatory damages and $300,000 punitive damages was returned. The trial judge, however, found that there was "no
evidence to support the jury's answers that there was actual malice"

Page 388 U. S. 142

and refused to enter the punitive award. He concluded that the failure further to investigate the minor discrepancy between the oral and written versions
of the incident could not

"be construed as that entire want of care which would amount to a conscious indifference to the rights of plaintiff. Negligence, it may have been; malice,
it was not. Moreover, the mere fact that AP permitted a young reporter to cover the story of the riot is not evidence of malice."

(Emphasis in original.) The trial judge also noted that this lack of "malice" would require a verdict for the Associated Press if New York Times were
applicable. But he rejected its applicability, since there were "no compelling reasons of public policy requiring additional defenses to suits for libel. Truth
alone should be an adequate defense."

Both sides appealed, and the Texas Court of Civil Appeals affirmed both the award of compensatory damages and the striking of punitive damages. It
stated without elaboration that New York Times was inapplicable. As to the punitive damage award, the plea for reinstatement was refused because,

"[i]n view of all the surrounding circumstances, the rapid and confused occurrence of events on the occasion in question, and in the light of all the
evidence, we hold that appellee failed to prove malice . ."

393 S.W.2d 671, 683.

The Supreme Court of Texas denied a writ of error, and we granted certiorari, as already indicated. For reasons given below, we would reverse.

III

Before we reach the constitutional arguments put forward by the respective petitioners, we must first determine whether Curtis has waived its right to
assert such arguments by failing to assert them before trial. As our dispositions of Rosenblatt v. Baer, 383 U. S. 75,

Page 388 U. S. 143

and other cases involving constitutional questions indicate, [Footnote 5] the mere failure to interpose such a defense prior to the announcement of a
decision which might support it cannot prevent a litigant from later invoking such a ground. Of course, it is equally clear that even constitutional
objections may be waived by a failure to raise them at a proper time, Michel v. Louisiana, supra, at 350 U. S. 99, [Footnote 6] but an effective waiver
must, as was said in Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464, be one of a "known right or privilege."

Butts makes two arguments in support of his contention that Curtis' failure to raise constitutional defenses amounted to a knowing waiver. The first is
that the general state of the law at the time of this trial was such that Curtis should, in the words of the Fifth Circuit majority, have seen "the handwriting
on the wall." 351 F.2d at 734. We cannot accept this contention. Although our decision in New York Times did draw upon earlier precedents in state
law, e.g., Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, and there were intimations in a prior opinion and the extrajudicial comments of one Justice
[Footnote 7] that some applications of libel law might be in conflict with the guarantees of free speech and press, there was strong precedent indicating
that civil libel actions

Page 388 U. S. 144

were immune from general constitutional scrutiny. [Footnote 8] Given the state of the law prior to our decision in New York Times, we do not think it
unreasonable for a lawyer trying a case of this kind, where the plaintiff was not even a public official under state law, to have looked solely to the
defenses provided by state libel law. Nor do we think that the previous grant of certiorari in New York Times alone indicates a different conclusion. The
questions presented for review there were premised on Sullivan's status as an elected public official, and elected officials traditionally have been subject
to special rules of libel law. [Footnote 9]

Butts' second contention is that whatever defenses might reasonably have been apparent to the average lawyer, some of Curtis' trial attorneys were
involved in the New York Times litigation, and thus should have been especially alert to constitutional contentions. This was the argument which swayed
the Court of Appeals, but we do not find it convincing.

First, as a general matter, we think it inadvisable to determine whether a "right or privilege" is "known" by relying on information outside the record
concerning the special legal knowledge of particular attorneys. Second, even a lawyer fully cognizant of the record and briefs in the New York
Times litigation might reasonably have expected the resolution of that case to have no impact

Page 388 U. S. 145

on this litigation, since the arguments advanced there depended so heavily on the analogy to seditious libel. We think that it was our eventual resolution
of New York Times, rather than its facts and the arguments presented by counsel, which brought out the constitutional question here. We would not hold
that Curtis waived a "known right" before it was aware of the New York Times decision. It is agreed that Curtis' presentation of the constitutional issue
after our decision in New York Times was prompt.

Our rejection of Butts' arguments is supported by factors which point to the justice of that conclusion. See Hormel v. Helvering, 312 U. S. 552, 312 U. S.
556-557. Curtis' constitutional points were raised early enough so that this Court has had the benefit of some ventilation of them by the courts below.
The resolution of the merits of Curtis' contentions by the District Court makes it evident that Butts was not prejudiced by the time at which Curtis raised
its argument, for it cannot be asserted that an earlier interposition would have resulted in any different proceedings below. [Footnote 10] Finally, the
constitutional protection which Butts contends that Curtis has waived safeguards a freedom which is the "matrix, the indispensable condition, of nearly
every other form of freedom." Palko v. Connecticut, 302 U. S. 319, 302 U. S. 327. Where the ultimate effect of sustaining a claim of waiver might be an
imposition on that valued freedom, we are unwilling to find waiver in circumstances which fall short of being clear and compelling. Cf. New York Times
Co. v. Connor, 365 F.2d 567, 572.

Page 388 U. S. 146

IV

We thus turn to a consideration, on the merits, of the constitutional claims raised by Curtis' in Butts and by the Associated Press in Walker. Powerful
arguments are brought to bear for the extension of the New York Times rule in both cases. In Butts, it is contended that the facts are on all fours with
those of Rosenblatt v. Baer, supra, since Butts was charged with the important responsibility of managing the athletic affairs of a state university. It is
argued that, while the Athletic Association is financially independent from the State and Butts was not technically a state employee, as was Baer, his role
in state administration was so significant that this technical distinction from Rosenblatt should be ignored. Even if this factor is to be given some weight,
we are told that the public interest in education in general, and in the conduct of the athletic affairs of educational institutions in particular, justifies
constitutional protection of discussion of persons involved in it equivalent to the protection afforded discussion of public officials.

A similar argument is raised in the Walker case, where the important public interest in being informed about the events and personalities involved in the
Mississippi riot is pressed. In that case, we are also urged to recognize that Walker's claims to the protection of libel laws are limited, since he thrust
himself into the "vortex" of the controversy.

We are urged by the respondents, Butts and Walker, to recognize society's "pervasive and strong interest in preventing and redressing attacks upon
reputation," and the "important social values which underlie the law of defamation."Rosenblatt v. Baer, supra, at 383 U. S. 86. It is pointed out that the
publicity in these instances was not directed at employees of government, and that these cases cannot be analogized to seditious libel
prosecutions. Id. at 383 U. S. 92(STEWART, J., concurring). We are

Page 388 U. S. 147

told that

"[t]he rule that permits satisfaction of the deep-seated need for vindication of honor is not a mere historic relic, but promotes the law's civilizing function
of providing an acceptable substitute for violence in the settlement of disputes,"

Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 81, 366 F.2d 649, 660, and that:

"Newspapers, magazines, and broadcasting companies are businesses conducted for profit, and often make very large ones. Like other enterprises that
inflict damage in the course of performing a service highly useful to the public . . . , they must pay the freight, and injured persons should not be
relegated [to remedies which] make collection of their claims difficult or impossible unless strong policy considerations demand."

Buckley v. New York Post Corp., 373 F.2d 175, 182.

We fully recognize the force of these competing considerations and the fact that an accommodation between them is necessary not only in these cases,
but in all libel actions arising from a publication concerning public issues. In Time, Inc. v. Hill, 385 U. S. 374, 385 U. S. 388, we held that "[t]he
guarantees for speech and press are not the preserve of political expression or comment upon public affairs . . .", and affirmed that freedom of
discussion

"must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period."

Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 102. This carries out the intent of the Founders, who felt that a free press would advance "truth, science,
morality, and arts in general," as well as responsible government. Letter to the Inhabitants of Quebec, 1 Journals of the Continental Cong. 108. From the
point of view of deciding whether a constitutional interest of free speech and press is properly involved in the resolution of a libel question, a rational

Page 388 U. S. 148

distinction

"cannot be founded on the assumption that criticism of private citizens who seek to lead in the determination of . . . policy will be less important to the
public interest than will criticism of government officials."

Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188, 196.

On the other hand, to take the rule found appropriate in New York Times to resolve the "tension" between the particular constitutional interest there
involved and the interests of personal reputation and press responsibility, Rosenblatt v. Baer, supra, at 383 U. S. 86, as being applicable throughout the
realm of the broader constitutional interest would be to attribute to this aspect of New York Times an unintended inexorability at the threshold of this new
constitutional development. In Time, Inc. v. Hill, supra, at 385 U. S. 390, we counseled against "blind application of New York Times Co. v. Sullivan", and
considered "the factors which arise in the particular context." Here we must undertake a parallel evaluation. [Footnote 11]

The modern history of the guarantee of freedom of speech and press mainly has been one of a search for the outer limits of that right. From the
fountainhead opinions of Justices Holmes and Brandeis in Schenck, Abrams, and Whitney, [Footnote 12] which considered the problem when the
disruptive effects of speech might strip the protection from the speaker, to our recent decision in Adderley v. Florida, 385 U. S. 39, where we found
freedom of speech not to include a freedom to trespass, the Court's primary concern has been to determine the extent of the right and the surrounding
safeguards necessary to give it "breathing space." NAACP v.
Page 388 U. S. 149

Button, 371 U. S. 415, 371 U. S. 433. That concern has perhaps omitted from searching consideration the "real problem" of defining or delimiting the
right itself. See Freund, Mr. Justice Black and the Judicial Function, 14 U.C.L.A.L.Rev. 467, 471.

It is significant that the guarantee of freedom of speech and press falls between the religious guarantees and the guarantee of the right to petition for
redress of grievances in the text of the First Amendment, the principles of which are carried to the States by the Fourteenth Amendment. It partakes of
the nature of both, for it is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the
community, see Holt, Of the Liberty of the Press, in Nelson, Freedom of the Press from Hamilton to the Warren Court 18-19, as it is a social necessity
required for the "maintenance of our political system and an open society." Time, Inc. v. Hill, supra, at 385 U. S. 389. It is because of the personal nature
of this right that we have rejected all manner of prior restraint on publication, Near v. Minnesota, 283 U. S. 697, despite strong arguments that, if the
material was unprotected, the time of suppression was immaterial. Pound, Equitable Relief Against Defamation and Injuries to Personality, 29
Harv.L.Rev. 640. The dissemination of the individual's opinions on matters of public interest is for us, in the historic words of the Declaration of
Independence, an "unalienable right" that "governments are instituted among men to secure." History shows us that the Founders were not always
convinced that unlimited discussion of public issues would be "for the benefit of all of us," [Footnote 13] but that they firmly adhered to the proposition
that the "true liberty of the press" permitted "every man to publish

Page 388 U. S. 150

his opinion." Respublica v. Oswald, 1 Dall. 319, 325 (Pa.).

The fact that dissemination of information and opinion on questions of public concern is ordinarily a legitimate, protected and indeed cherished activity
does not mean, however, that one may in all respects carry on that activity exempt from sanctions designed to safeguard the legitimate interests of
others. A business

"is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of
general laws. He has no special privilege to invade the rights and liberties of others."

Associated Press v. Labor Board, 301 U. S. 103, 301 U. S. 132-133. Federal securities regulation, [Footnote 14] mail fraud statutes, [Footnote 15] and
common law actions for deceit and misrepresentation [Footnote 16] are only some examples of our understanding that the right to communicate
information of public interest is not "unconditional." See Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev. 1191. However, as our
decision in New York Times makes explicit, while protected activity may, in some respects, be subjected to sanctions, it is not open to all forms of
regulation. The guarantees of freedom of speech and press were not designed to prevent

"the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public
matters as seems absolutely essential. . . ."

2 Cooley, Constitutional Limitations 886 (8th ed.). Our touchstones are that acceptable

Page 388 U. S. 151

limitations must neither affect "the impartial distribution of news" and ideas, Associated Press v. Labor Board, supra, at 301 U. S. 133, nor because of
their history or impact constitute a special burden on the press, Grosjean v. American Press Co., Inc., 297 U. S. 233, nor deprive our free society of the
stimulating benefit of varied ideas because their purveyors fear physical or economic retribution solely because of what they choose to think and publish.

The history of libel law leaves little doubt that it originated in soil entirely different from that which nurtured these constitutional values. Early libel was
primarily a criminal remedy, the function of which was to make punishable any writing which tended to bring into disrepute the state, established religion,
or any individual likely to be provoked to a breach of the peace because of the words. Truth was no defense in such actions, and, while a proof of truth
might prevent recovery in a civil action, this limitation is more readily explained as a manifestation of judicial reluctance to enrich an undeserving plaintiff
than by the supposition that the defendant was protected by the truth of the publication. The same truthful statement might be the basis of a criminal libel
action. See Commonwealth v. Clap, 4 Mass. 163; see generallyVeeder, The History and Theory of the Law of Defamation, 3 Col.L.Rev. 546, 4
Col.L.Rev. 33.

The law of libel has, of course, changed substantially since the early days of the Republic, and this change is "the direct consequence of the friction
between it . . . and the highly cherished right of free speech." State v. Browne, 86 N.J.Super. 217, 228, 206 A.2d 591, 597. The emphasis has shifted
from criminal to civil remedies, from the protection of absolute social values to the safeguarding of valid personal interests. Truth has become an
absolute defense in almost all cases, [Footnote 17] and privileges designed to foster free communication are almost universally

Page 388 U. S. 152

recognized. [Footnote 18] But the basic theory of libel has not changed, and words defamatory of another are still placed "in the same class with the use
of explosives or the keeping of dangerous animals." Prosser, The Law of Torts § 108, at 792. Thus, some antithesis between freedom of speech and
press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain
sentiments, at least without guaranteeing legal proof of their substantial accuracy.

While the truth of the underlying facts might be said to mark the line between publications which are of significant social value and those which might be
suppressed without serious social harm, and thus resolve the antithesis on a neutral ground, we have rejected, in prior cases involving materials and
persons commanding justified and important public interest, the argument that a finding of falsity alone should strip protections from the publisher. New
York Times Co. v. Sullivan, supra, at 376 U. S. 272. We have recognized "the inevitability of some error in the situation presented in free debate," Time,
Inc. v. Hill, supra, at 385 U. S. 406 (opinion of this writer), and that "putting to the preexisting prejudices of a jury the determination of what is true' may
effectively institute a system of censorship."

Our resolution of New York Times Co. v. Sullivan, in the context of the numerous statutes and cases which allow ideologically neutral and generally
applicable regulatory measures to be applied to publication, makes clear, however, that neither the interests of the publisher nor those of society
necessarily preclude a damage award

Page 388 U. S. 153

based on improper conduct which creates a false publication. It is the conduct element, therefore, on which we must principally focus if we are
successfully to resolve the antithesis between civil libel actions and the freedom of speech and press. Impositions based on misconduct can be neutral
with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free
circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood.
In New York Times, we were adjudicating in an area which lay close to seditious libel, and history dictated extreme caution in imposing liability. The
plaintiff in that case was an official whose position in government was such "that the public [had] an independent interest in the qualifications and
performance of the person who [held] it." Rosenblatt v. Baer, supra, at383 U. S. 86. Such officials usually enjoy a privilege against libel actions for their
utterances, see, e.g., Barr v. Matteo, 360 U. S. 564, and there were analogous considerations involved in New York Times, supra, at 376 U. S. 282.
Thus, we invoked

"the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies,"

Dennis v. United States, 341 U. S. 494, 341 U. S. 503, and limited recovery to those cases where "calculated falsehood" placed the publisher

"at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected."

Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 75. That is to say, such officials were permitted to recover in libel only when they could prove that the
publication involved was deliberately falsified, or published recklessly despite the publisher's awareness of probable falsity. Investigatory failures alone
were held insufficient to satisfy this standard. See New York

Page 388 U. S. 154

Times, at 376 U. S. 286-288, 376 U. S. 292; Garrison v. Louisiana, supra, at 379 U. S. 73-75, 379 U. S. 79.

In the cases we decide today, none of the particular considerations involved in New York Times is present. These actions cannot be analogized to
prosecutions for seditious libel. Neither plaintiff has any position in government which would permit a recovery by him to be viewed as a vindication of
governmental policy. Neither was entitled to a special privilege protecting his utterances against accountability in libel. We are prompted, therefore, to
seek guidance from the rules of liability which prevail in our society with respect to compensation of persons injured by the improper performance of a
legitimate activity by another. Under these rules, a departure from the kind of care society may expect from a reasonable man performing such activity
leaves the actor open to a judicial shifting of loss. In defining these rules, and especially in formulating the standards for determining the degree of care
to be expected in the circumstances, courts have consistently given much attention to the importance of defendants' activities. Prosser, The Law of Torts
§ 31, at 151. The courts have also, especially in libel cases, investigated the plaintiff's position to determine whether he has a legitimate call upon the
court for protection in light of his prior activities and means of self-defense. See Brewer v. Hearst Publishing Co.,185 F.2d 846; Flanagan v. Nicholson
Publishing Co., 137 La. 588, 68 So. 964. We note that the public interest in the circulation of the materials here involved, and the publisher's interest in
circulating them, is not less than that involved in New York Times. And both Butts and Walker commanded a substantial amount of independent public
interest at the time of the publications; both, in our opinion, would have been labeled "public figures" under ordinary tort rules. See Spahn v. Julian
Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543, remanded

Page 388 U. S. 155

on other grounds, 387 U. S. 239. Butts may have attained that status by position alone, and Walker by his purposeful activity amounting to a thrusting of
his personality into the "vortex" of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to
the means of counterargument to be able "to expose through discussion the falsehood and fallacies" of the defamatory statements. Whitney v.
California, 274 U. S. 357, 274 U. S. 377 (Brandeis, J., dissenting).

These similarities and differences between libel actions involving persons who are public officials and libel actions involving those circumstanced as
were Butts and Walker, viewed in light of the principles of liability which are of general applicability in our society, lead us to the conclusion that libel
actions of the present kind cannot be left entirely to state libel laws, unlimited by any overriding constitutional safeguard, but that the rigorous federal
requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake. We consider and would hold that a
"public figure" who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to
reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers. Cf.Sulzberger, Responsibility and Freedom, in Nelson, Freedom of the Press from Hamilton to the
Warren Court 409, 412.

Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill, [Footnote 19]

Page 388 U. S. 156

Having set forth the standard by which we believe the constitutionality of the damage awards in these cases must be judged, we turn now, as the Court
did in New York Times, to the question whether the evidence and findings below meet that standard. We find the standard satisfied in No. 37, Butts, and
not satisfied by either the evidence or the findings in No. 150, Walker.

The Butts jury was instructed, in considering punitive damages, to assess

"the reliability, the nature of the sources of the defendant's information, its acceptance or rejection of the sources, and its care in checking upon
assertions."

These considerations were said to be relevant to a determination whether defendant had proceeded with "wanton and reckless indifference." In this light,
we consider that the jury must have decided that the investigation undertaken by the Saturday Evening Post, upon which much evidence and argument
was centered, [Footnote 20] was grossly inadequate in the circumstances. The impact of a jury instruction

"is not to be ascertained by

Page 388 U. S. 157

merely considering isolated statements, but by taking into view all the instructions given and the tendencies of the proof in the case to which they could
possibly be applied."

Seaboard Air Line R. Co. v. Padgett, 236 U. S. 668, 236 U. S. 672.

This jury finding was found to be supported by the evidence by the trial judge and the majority in the Fifth Circuit. Given the extended history of the case,
the amount of the evidence pointing to serious deficiencies in investigatory procedure, and the severe harm inflicted on Butts, we would not feel justified
in ordering a retrial of the compensatory damage issue, either on the theory that this aspect of the case was submitted to the jury only under the issue of
"truth," [Footnote 21] or on the very slim possibility that the jury finding regarding punitive damages might have been based on Curtis' attitude toward
Butts, rather than on Curtis' conduct.

The evidence showed that the Butts story was in no sense "hot news," and the editors of the magazine recognized the need for a thorough investigation
of the serious charges. Elementary precautions were, nevertheless, ignored. The Saturday Evening Post knew that Burnett had been placed on
probation in connection with bad check charges, but proceeded to publish the story on the basis of his affidavit, without substantial independent support.
Burnett's notes were not even viewed by any of the magazine's personnel prior to publication. John Carmichael, who was supposed to have been with
Burnett when the phone call was overheard, was not interviewed. No attempt was made to screen the films of the game to see if Burnett's information
was accurate, and no attempt was made to find out whether Alabama had adjusted its plans after the alleged divulgence of information.

Page 388 U. S. 158

The Post writer assigned to the story was not a football expert, and no attempt was made to check the story with someone knowledgeable in the sport.
At trial, such experts indicated that the information in the Burnett notes was either such that it would be evident to any opposing coach from game films
regularly exchanged, or valueless. Those assisting the Post writer in his investigation were already deeply involved in another libel action, based on a
different article, brought against Curtis Publishing Co. by the Alabama coach and unlikely to be the source of a complete and objective investigation. The
Saturday Evening Post was anxious to change its image by instituting a policy of "sophisticated muckraking," and the pressure to produce a successful
expose might have induced a stretching of standards. In short, the evidence is ample to support a finding of highly unreasonable conduct constituting an
extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.

The situation in Walker is considerably different. There, the trial court found the evidence insufficient to support more than a finding of even ordinary
negligence, and the Court of Civil Appeals supported the trial court's view of the evidence. Ordinarily we would, under the governing constitutional
standard, reverse the decision below on the concurrent findings rule. Graver Tank Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 336 U. S. 275. But,
as in New York Times, we think it better to face for ourselves the question whether there is sufficient evidence to support the finding we would require.

In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press
received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and
competent. His dispatches in this instance,

Page 388 U. S. 159

with one minor exception, were internally consistent, and would not have seemed unreasonable to one familiar with General Walker's prior publicized
statements on the underlying controversy. [Footnote 22] Considering the necessity for rapid dissemination, nothing in this series of events gives the
slightest hint of a severe departure from accepted publishing standards. We therefore conclude that General Walker should not be entitled to damages
from the Associated Press.

VI

We come finally to Curtis' contention that, whether or not it can be required to compensate Butts for any injury it may have caused him, it cannot be
subjected to an assessment for punitive damages limited only by the "enlightened conscience" of the community. Curtis recognizes that the Constitution
presents no general bar to the assessment of punitive damages in a civil case, Day v. Woodworth, 13 How. 363, 54 U. S. 370-371, but contends that an
unlimited punitive award against a magazine publisher constitutes an effective prior restraint by giving the jury the power to destroy the publisher's
business. We cannot accept this reasoning. Publishers like Curtis engage in a wide variety of activities which may

Page 388 U. S. 160

lead to tort suits where punitive damages are a possibility. To exempt a publisher, because of the nature of his calling, from an imposition generally
exacted from other members of the community would be to extend a protection not required by the constitutional guarantee. Associated Press v. Labor
Board, 301 U. S. 103. We think the constitutional guarantee of freedom of speech and press is adequately served by judicial control over excessive jury
verdicts, manifested in this instance by the trial court's remittitur and by the general rule that a verdict based on jury prejudice cannot be sustained even
when punitive damages are warranted. See, e.g., Minneapolis, St. P. & S.S.M. R. Co. v. Moquin, 283 U. S. 520,283 U. S. 521.

Despite this conclusion, it might be argued that an award of punitive damages cannot be justified constitutionally by the same degree of misconduct
required to support a compensatory award. The usual rule in libel actions, and other state-created tort actions, is that a higher degree of fault is
necessary to sustain a punitive imposition than a compensatory award. And it might be asserted that the need to compensate the injured plaintiff is not
relevant to the issue of punitive damages in libel, since an award of general damages compensates for any possible pecuniary and intangible harm.
Thus, the argument would be that the strong speech and press interest in publishing material on public issues, which we have recognized as parallel to
the interest in publishing political criticism present in New York Times, must be served by a limitation on punitive damages restricting them to cases of
"actual malice" as defined in New York Times and Garrison v. Louisiana, supra. We find the force of any such argument quite insufficient to overcome
the compelling contrary considerations, and there is, moreover, nothing in any of our past cases which suggests that compensatory and punitive
damages are subject to different constitutional standards of misconduct.

Page 388 U. S. 161

Where a publisher's departure from standards of press responsibility is severe enough to strip from him the constitutional protection our decision
acknowledges, we think it entirely proper for the State to act not only for the protection of the individual injured, but to safeguard all those similarly
situated against like abuse. Moreover, punitive damages require a finding of "ill will" under general libel law, and it is not unjust that a publisher be forced
to pay for the "venting of his spleen" in a manner which does not meet even the minimum standards required for constitutional protection. Especially in
those cases where circumstances outside the publication itself reduce its impact sufficiently to make a compensatory imposition an inordinately light
burden, punitive damages serve a wholly legitimate purpose in the protection of individual reputation. We would hold, therefore, that misconduct
sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject, of course, to the limitation that such
award is not demonstrated to be founded on the mere prejudice of the jury. As we have already noted (supra, pp. 388 U. S. 156-158) the case on
punitive damages was put to the jury under instructions which satisfied the constitutional test we would apply in cases of this kind, and the evidence
amply supported the jury's findings. [Footnote 23]

The judgment of the Court of Appeals for the Fifth Circuit in No. 37 is affirmed. The judgment of the

Page 388 U. S. 162

Texas Court of Civil Appeals in No. 150 is reversed, and the case is remanded to that court for further proceedings not inconsistent with the opinions that
have been filed herein by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE BRENNAN.

It is so ordered.
Rosenbloom v. Metromedia, 403 U.S. 29 (1971)

Rosenbloom v. Metromedia

No. 66

Argued December 7, 1970

Decided June 7, 1971

403 U.S. 29

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Respondent's radio station, which broadcast news reports every half hour, broadcast news stories of petitioner's arrest for possession of obscene
literature and the police seizure of "obscene books," and stories concerning petitioner's lawsuit against certain officials alleging that the magazines he
distributed were not obscene and seeking injunctive relief from police interference with his business. These latter stories did not mention petitioner's
name, but used the terms "smut literature racket" and "girlie-book peddlers." Following petitioner's acquittal of criminal obscenity charges, he filed this
diversity action in District Court seeking damages under Pennsylvania's libel law. The jury found for petitioner and awarded $25,000 in general
damages; and $725,000 in punitive damages, which was reduced by the court on remittitur to $250,000. The Court of Appeals reversed, holding that
the New York Times Co. v. Sullivan, 376 U. S. 254, standard applied, and "the fact that plaintiff was not a public figure cannot be accorded decisive
significance."

Held: The judgment is affirmed. Pp. 403 U. S. 40-62.

415 F.2d 892, affirmed.

MR. JUSTICE BRENNAN, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, concluded that the New York Timesstandard of knowing or
reckless falsity applies in a state civil libel action brought by a private individual for a defamatory falsehood uttered in a radio news broadcast about the
individual's involvement in an event of public or general interest. Pp. 403 U. S. 40-57.

MR. JUSTICE BLACK concluded that the First Amendment protects the news media from libel judgments even when statements are made with
knowledge that they are false. P. 403 U. S. 57.

MR. JUSTICE WHITE concluded that, in the absence of actual malice as defined in New York Times, supra, the First Amendment gives the news media
a privilege to report and comment upon the official actions of public servants in full detail, without sparing from public view the reputation or privacy of an
individual involved in or affected by any official action. Pp. 403 U. S. 59-62.

Page 403 U. S. 30

BRENNAN, J., announced the Court's judgment and delivered an opinion in which BURGER, C.J., and BLACKMUN, J., joined. BLACK, J., post, p. 403
U. S. 57, and WHITE, J., post, p. 403 U. S. 57, filed opinions concurring in the judgment. HARLAN, J., filed a dissenting opinion, post, p. 403 U. S. 62.
MARSHALL, J., filed a dissenting opinion in which STEWART, J., joined, post,p. 403 U. S. 78. DOUGLAS, J., took no part in the consideration or
decision of this case.

MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join.

In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court has considered the limitations upon state libel laws
imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official
against a newspaper those guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with "knowledge
that it was false or with reckless disregard of whether it was false or not." Id. at 376 U. S. 280. The same requirement was later held to apply to "public
figures" who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of
"public officials" or "public figures," usually, but not always, against newspapers or magazines. [Footnote 1] Common to all the cases was a

Page 403 U. S. 31

defamatory falsehood in the report of an event of "public or general interest." [Footnote 2] The instant case presents the question whether the New York
Times' "knowing or reckless falsity standard" applies in a state civil libel action brought not by a "public official" or a "public figure," but by a private
individual for a defamatory falsehood uttered in a news broadcast by a radio station about the individual's involvement in an event of public or general

Page 403 U. S. 32

interest. [Footnote 3] The District Court for the Eastern District of Pennsylvania held that the New York Times standard did not apply. and that
Pennsylvania law determined respondent's liability in this diversity case, 289 F.Supp. 737 (1968). The Court of Appeals for the Third Circuit held that
the New York Times standard did apply, and reversed the judgment for damages awarded to petitioner by the jury. 415 F.2d 892 (1969). We granted
certiorari, 397 U.S. 904 (1970). We agree with the Court of Appeals, and affirm that court's judgment.

In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of that year, in response to citizen
complaints, the Special Investigations Squad of the Philadelphia Police Department initiated a series of enforcement actions under the city's obscenity
laws. The police, under the command of Captain Ferguson, purchased various magazines from more than 20 newsstands throughout the city. Based
upon Captain Ferguson's determination that the magazines were obscene, [Footnote 4] police, on October 1, 1963, arrested most of the newsstand
operators [Footnote 5] on charges of selling obscene material. While the police were making an arrest at one newsstand, petitioner arrived to deliver
some of his nudist magazines, and was immediately arrested
Page 403 U. S. 33

along with the newsboy. [Footnote 6] Three days later, on October 4, the police obtained a warrant to search petitioner's home and the rented barn he
used as a warehouse, and seized the inventory of magazines and books found at these locations. Upon learning of the seizures, petitioner, who had
been released on bail after his first arrest, surrendered to the police and was arrested for a second time.

Following the second arrest, Captain Ferguson telephoned respondent's radio station WIP and another local radio station, a wire service, and a local
newspaper to inform them of the raid on petitioner's home and of his arrest. WIP broadcast news reports every half hour to the Philadelphia metropolitan
area. These news programs ran either five or ten minutes, and generally contained from six to twenty different items that averaged about thirty seconds
each. WIP's 6 p.m. broadcast on October 4, 1963, included the following item:

"City Cracks Down on Smut Merchants"

"The Special Investigations Squad raided the home of George Rosenbloom in the 1800 block of Vesta Street this afternoon. Police confiscated 1,000
allegedly obscene books at Rosenbloom's home and arrested him on charges of possession of obscene literature. The Special Investigations Squad
also raided a barn in the 20 Hundred block of Welsh Road near Bustleton Avenue and confiscated 3,000 obscene books. Capt. Ferguson says he
believes they have hit the supply of a main distributor of obscene material in Philadelphia. "

Page 403 U. S. 34

This report was rebroadcast in substantially the same form at 6:30 p.m., but at 8 p.m., when the item was broadcast for the third time, WIP corrected the
third sentence to read "reportedly obscene." News of petitioner's arrest was broadcast five more times in the following twelve hours, but each report
described the seized books as "allegedly" or "reportedly" obscene. From October 5 to October 21, WIP broadcast no further reports relating to petitioner.

On October 16, petitioner brought an action in Federal District Court against various city and police officials and against several local news media.
[Footnote 7] The suit alleged that the magazines petitioner distributed were not obscene, and sought injunctive relief prohibiting further police
interference with his business, as well as further publicity of the earlier arrests. The second series of allegedly defamatory broadcasts related to WIP's
news reports of the lawsuit. There were ten broadcasts on October 21, two on October 25, and one on November 1. None mentioned petitioner by
name. The first, at 6:30 a.m. on October 21, was pretty much like those that followed:

"Federal District Judge Lord, will hear arguments today from two publishers and a distributor all seeking an injunction against Philadelphia Police
Commissioner Howard Leary . . . District Attorney James C. Crumlish . . . a local television station and a newspaper . . . ordering them to lay off the smut
literature racket."

"The girlie-book peddlers say the police crackdown

Page 403 U. S. 35

and continued reference to their borderline literature as smut or filth is hurting their business. Judge Lord refused to issue a temporary injunction when
he was first approached. Today he'll decide the issue. It will set a precedent . . . and if the injunction is not granted . . . it could signal an even more
intense effort to rid the city of pornography."

On October 27, petitioner went to WIP's studios after hearing from a friend that the station had broadcast news about his lawsuit. Using a lobby
telephone to talk with a part-time newscaster, petitioner inquired what stories WIP had broadcast about him. The newscaster asked him to be more
specific about dates and times. Petitioner then asked for the noon news broadcast on October 21, 1963, which the newscaster read to him over the
phone; it was similar to the above 6:30 a.m. broadcast. According to petitioner, the ensuing interchange was brief. Petitioner told the newscaster that his
magazines were "found to be completely legal and legitimate by the United States Supreme Court." When the newscaster replied the district attorney
had said the magazines were obscene, petitioner countered that he had a public statement of the district attorney declaring the magazines legal. At that
point, petitioner testified, "the telephone conversation was terminated. . . . He just hung up." Petitioner apparently made no request for a retraction or
correction, and none was forthcoming. WIP's final report on petitioner's lawsuit -- the only one after petitioner's unsatisfactory conversation at the station
-- occurred on November 1 after the station had checked the story with the judge involved. [Footnote 8]

Page 403 U. S. 36

II

In May, 1964 a jury acquitted petitioner in state court of the criminal obscenity charges under instructions of the trial judge that, as a matter of law, the
nudist magazines distributed by petitioner were not obscene. Following his acquittal, petitioner filed this diversity action in District Court seeking
damages under Pennsylvania's libel law. Petitioner alleged that WIP's unqualified characterization of the books seized as "obscene" in the 6 and 6:30
p.m. broadcasts of October 4, describing his arrest, constituted libel per se and was proved false by petitioner's subsequent acquittal. In addition, he
alleged that the broadcasts in the second series describing his court suit for injunctive relief were also false and defamatory in that WIP characterized
petitioner and his business associates as "smut distributors" and "girlie-book peddlers" and, further, falsely characterized the suit as an attempt to force
the defendants "to lay off the smut literature racket."

At the trial, WIP's defenses were truth and privilege. WIP's news director testified that his eight-man staff of reporters prepared their own newscasts and
broadcast their material themselves, and that material for the news programs usually came either from the wire services or from telephone tips. None of
the writers or broadcasters involved in preparing the broadcasts in this case testified. The news director's recollection was that the primary source of
information for the first series of broadcasts

Page 403 U. S. 37

about petitioner's arrest was Captain Ferguson, but that, to the director's knowledge, the station did not have any further verification. Captain Ferguson
testified that he had informed WIP and other media of the police action, and that WIP had accurately broadcast what he told the station. The evidence
regarding WIP's investigation of petitioner's lawsuit in the second series of broadcasts was even more sparse. The news director testified that he was
"sure we would check with the District Attorney's office also and with the Police Department," but "it would be difficult for me to specifically state what
additional corroboration we had." In general, he testified that WIP's half-hour deadlines required it to rely on wire service copy and oral reports from
previously reliable sources, subject to the general policy that "we will contact as many sources as we possibly can on any kind of a story."

III

Pennsylvania's libel law tracks almost precisely the Restatement (First) of Torts provisions on the subject. Pennsylvania holds actionable any
unprivileged "malicious" [Footnote 9] publication of matter which tends to harm a person's reputation and expose him to public hatred, contempt, or
ridicule. Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Restatement of Torts §§ 558, 559 (1938). Pennsylvania law recognizes truth as a
complete defense to a libel action.Schonek v. WJAC, Inc., 436 Pa. 78, 84, 258 A.2d 504, 507 (1969); Restatement of Torts § 582. It recognizes an
absolute immunity for defamatory statements made by high state officials, even if published with an improper motive, actual malice, or knowing
falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d 100 (1958); Restatement of Torts § 591,

Page 403 U. S. 38

and it recognizes a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate,
and not published solely for the purpose of causing harm to the person defamed, even though the official information is false or inaccurate. Sciandra v.
Lynett, 409 Pa. 595, 600-601, 187 A.2d 586, 588-589 (1963); Restatement of Torts § 611. The conditional privilege of the news media may be defeated,
however, by

"'want of reasonable care and diligence to ascertain the truth, before giving currency to an untrue communication.' The failure to employ such
'reasonable care and diligence' can destroy a privilege which otherwise would protect the utterer of the communication."

Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 179, 191 A.2d 662, 668 (1963). Pennsylvania has also enacted verbatim the Restatement's
provisions on burden of proof, which place the burden of proof for the affirmative defenses of truth and privilege upon the defendant. [Footnote 10]

Page 403 U. S. 39

At the close of the evidence, the District Court denied respondent's motion for a directed verdict and charged the jury, in conformity with Pennsylvania
law, that four findings were necessary to return a verdict for petitioner: (1) that one or more of the broadcasts were defamatory; (2) that a reasonable
listener would conclude that the defamatory statement referred to petitioner; (3) that WIP had forfeited its privilege to report official proceedings fairly and
accurately, either because it intended to injure the plaintiff personally or because it exercised the privilege unreasonably and without reasonable care;
and (4) that the reporting was false. The jury was instructed that petitioner had the burden of proof on the first three issues, but that respondent had the
burden of proving that the reporting was true. The jury was further instructed that, "as a matter of law," petitioner was not entitled to actual damages
claimed for loss of business "not because it wouldn't ordinarily be, but because there has been evidence that this same subject matter was the subject"
of broadcasts over other television and radio stations and of newspaper reports, "so if there was any business lost . . . we have no proof . . . that [it]
resulted directly from the broadcasts by WIP. . . ." App. 331a. On the question of punitive damages, the judge gave the following instruction:

"[I]f you find that this publication arose from a bad motive or malice toward the plaintiff, or if you find that it was published with reckless indifference to the
truth, if you find that it was not true, you would be entitled to award punitive damages, and punitive damages are awarded as a deterrent from future
conduct of the same sort."

"They really are awarded only for outrageous conduct, as I have said, with a bad motive or with reckless disregard of the interests of others, and before

Page 403 U. S. 40

you would award punitive damages, you must find that these broadcasts were published with a bad motive or with reckless disregard of the rights of
others, or reckless indifference to the rights of others. . . ."

The jury returned a verdict for petitioner and awarded $25,000 in general damages, and $725,000 in punitive damages. The District Court reduced the
punitive damages award to $250,000 on remittitur, but denied respondent's motion for judgment n.o.v. In reversing, the Court of Appeals emphasized
that the broadcasts concerned matters of public interest, and that they involved "hot news" prepared under deadline pressure. The Court of Appeals
concluded that

"the fact that plaintiff was not a public figure cannot be accorded decisive importance if the recognized important guarantees of the First Amendment are
to be adequately implemented."

415 F.2d at 896. For that reason, the court held that the New York Times standard applied and, further, directed that judgment be entered for
respondent, holding that, as a matter of law, petitioner's evidence did not meet that standard.

IV

Petitioner concedes that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional
guarantees for freedom of speech and press imposed limits upon Pennsylvania's power to apply its libel laws to compel respondent to compensate him
in damages for the alleged defamatory falsehoods broadcast about his involvement. As noted, the narrow question he raises is whether, because he is
not a "public official" or a "public figure," but a private individual, those limits required that he prove that the falsehoods resulted from a failure of
respondent to exercise reasonable care, or required that he prove that

Page 403 U. S. 41

the falsehoods were broadcast with knowledge of their falsity or with reckless disregard of whether they were false or not. That question must be
answered against the background of the functions of the constitutional guarantees for freedom of expression. Rosenblatt v. Baer, 383 U. S. 75, at 383 U.
S. 84-85, n. 10 (1966).

Self-governance in the United States presupposes far more than knowledge and debate about the strictly official activities of various levels of
government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the
Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to
live and work together in a free society not completely dominated by governmental regulation necessarily encompass far more than politics in a narrow
sense. "The guarantees for speech and press are not the preserve of political expression or comment upon public affairs." Time, Inc. v. Hill, 385 U. S.
374, 385 U. S. 388 (1967).

"Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to
enable the members of society to cope with the exigencies of their period."

Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 102 (1940). Although the limitations upon civil libel actions, first held in New York Times to be required by
the First Amendment, were applied in that case in the context of defamatory falsehoods about the official conduct of a public official, later decisions have
disclosed the artificiality, in terms of the public's interest, of a simple distinction between "public" and "private" individuals or institutions:

"Increasingly in this country, the distinctions between governmental and private sectors are blurred. . . . In many situations, policy determinations

Page 403 U. S. 42
which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards,
committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has
also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of
important public questions. . . ."

". . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate
about their involvement in public issues and events is as crucial as it is in the case of 'public officials.'"

Curtis Publishing Co. v. Butts, 388 U. S. 130, 388 U. S. 163-164 (1967) (Warren, C.J., concurring in result).

Moreover, the constitutional protection was not intended to be limited to matters bearing broadly on issues of responsible government.

"[T]he Founders . . . felt that a free press would advance 'truth, science, morality, and arts in general,' as well as responsible government."

Id. at 388 U. S. 147 (opinion of HARLAN, J.). Comments in other cases reiterate this judgment that the First Amendment extends to myriad matters of
public interest. In Time, Inc. v. Hill, supra, we had "no doubt that the . . . opening of a new play linked to an actual incident, is a matter of public interest,"
385 U.S. at 385 U. S. 388, which was entitled to constitutional protection. Butts held that an alleged "fix" of a college football game was a public
issue. Associated Press v. Walker, 388 U. S. 130 (1967), a companion case to Butts, established that the public had a similar interest in the events and
personalities involved in federal efforts to enforce a court decree ordering the enrollment of a Negro student in the University of Mississippi. Thus, these
cases underscore the vitality, as

Page 403 U. S. 43

well as the scope, of the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New
York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270-271 (emphasis added).

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because, in
some sense, the individual did not "voluntarily" choose to become involved. The public's primary interest is in the event; the public focus is on the
conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety. [Footnote 11] The
present case illustrates the point. The community has a vital interest in the proper enforcement of its criminal laws, particularly in an area such as
obscenity, where a number of highly important values are potentially in conflict: the public has an interest both in seeing that the criminal law is
adequately enforced and in assuring that the law is not used unconstitutionally to suppress free expression. Whether the person involved is a famous
large-scale magazine distributor or a "private" businessman running a corner newsstand has no relevance in ascertaining whether the public has an
interest in the issue. We honor the commitment to robust debate on public issues, which is embodied in the First Amendment,

Page 403 U. S. 44

by extending constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the
persons involved are famous or anonymous. [Footnote 12]

Our Brother WHITE agrees that the protection afforded by the First Amendment depends upon whether the issue involved in the publication is an issue
of public or general concern. He would, however, confine our holding to the situation raised by the facts in this case, that is, limit it to issues involving
"official actions of public servants." In our view, that might be misleading. It is clear that there has emerged from our cases decided since New York
Times the concept that the First Amendment's impact upon state libel laws derives not so much from whether the plaintiff is a "public official," "public
figure," or "private individual," as it derives from the question whether the allegedly defamatory publication concerns a matter of public or general
interest. See T. Emerson, The System of Freedom of Expression 531-532, 540 (1970). In that circumstance, we think the time has come forthrightly to
announce that the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public
or general concern, albeit leaving the

Page 403 U. S. 45

delineation of the reach of that term to future cases. As our Brother WHITE observes, that is not a problem in this case, since police arrest of a person
for distributing allegedly obscene magazines clearly constitutes an issue of public or general interest. [Footnote 13]

We turn then to the question to be decided. Petitioner's argument that the Constitution should be held to require that the private individual prove only that
the publisher failed to exercise "reasonable care" in publishing defamatory falsehoods proceeds along two lines. First, he argues that the private
individual, unlike the public figure, does not have access to the media to counter the defamatory material, and that the private individual, unlike the public
figure, has not assumed the risk of defamation by thrusting himself into the public arena. Second, petitioner focuses on the important values served by
the law of defamation in preventing and redressing attacks upon reputation.

We have recognized the force of petitioner's arguments, Time, Inc. v. Hill, supra, at 385 U. S. 391, and we adhere to the caution expressed in that case
against "blind application" of the New York Times standard. Id. at 385 U. S. 390. Analysis of the particular factors involved, however, convinces us that
petitioner's arguments cannot be reconciled with the purposes of the First Amendment, with our cases, and with the traditional doctrines of libel law
itself. Drawing a distinction between "public"

Page 403 U. S. 46

and "private" figures makes no sense in terms of the First Amendment guarantees. [Footnote 14] The New York Timesstandard was applied to libel of a
public official or public figure to give effect to the Amendment's function to encourage ventilation of public issues, not because the public official has any
less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can
command media attention to counter criticism may be true for some very prominent people, even then, it is the rare case where the denial overtakes the
original charge. Denials, retractions, and corrections are not "hot" news, and rarely receive the prominence of the original story. When the public official
or public figure is a minor functionary, or has left the position that put him in the public eye, see Rosenblatt v. Baer, supra, the argument loses all of its
force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex
factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. Thus, the unproved, and
highly improbable, generalization that an as-yet undefined class of "public figures" involved in matters of public concern will be better able to respond

Page 403 U. S. 47

through the media than private individuals also involved in such matters seems too insubstantial a reed on which to rest a constitutional distinction.
Furthermore, in First Amendment terms, the cure seems far worse than the disease. If the States fear that private citizens will not be able to respond
adequately to publicity involving them, the solution lies in the direction of ensuring their ability to respond, rather than in stifling public discussion of
matters of public concern. [Footnote 15]

Further reflection over the years since New York Times was decided persuades us that the view of the "public official" or "public figure" as assuming the
risk of defamation by voluntarily thrusting himself into the public eye bears little relationship either to the values protected by the First Amendment or to
the nature of our society. We have recognized that "[e]xposure of the self to others in varying degrees is a concomitant of life in a civilized
community." Time, Inc. v. Hill,

Page 403 U. S. 48

supra at 385 U. S. 388. Voluntarily or not, we are all "public" men to some degree. Conversely, some aspects of the lives of even the most public men
fall outside the area of matters of public or general concern. See n 12, supra; Griswold v. Connecticut, 381 U. S. 479 (1965). [Footnote 16] Thus, the
idea that certain "public" figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully
shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion
of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of
aspects of the lives of "public figures" that are not in the area of public or general concern.

General references to the values protected by the law of libel conceal important distinctions. Traditional arguments suggest that libel law protects two
separate interests of the individual: first, his desire to preserve a certain privacy around his personality from unwarranted intrusion, and, second, a desire
to preserve his public good name and reputation. See Rosenblatt v. Baer, 383 U.S. at 383 U. S. 92 (STEWART, J., concurring). The individual's interest
in privacy -- in preventing unwarranted intrusion upon the private aspects of his life -- is not involved in this case, or even in the class of cases under
consideration, since, by hypothesis, the individual is involved in matters of public or general concern. [Footnote 17] In

Page 403 U. S. 49

the present case, however, petitioner's business reputation is involved, and thus the relevant interests protected by state libel law are petitioner's public
reputation and good name.

These are important interests. Consonant with the libel laws of most of the States, however, Pennsylvania's libel law subordinates these interests of the
individual in a number of circumstances. Thus, high government officials are immune from liability -- absolutely privileged -- even if they publish
defamatory material from an improper motive, with actual malice, and with knowledge of its falsity. Montgomery v. Philadelphia, 392 Pa. 178, 140 A.2d
100 (1958). This absolute privilege attaches to judges, attorneys at law in connection with a judicial proceeding, parties and witnesses to judicial
proceedings, Congressmen and state legislators, and high national and state executive officials. Restatement of Torts §§ 585-592. Moreover, a
conditional privilege allows newspapers to report the false defamatory material originally published under the absolute privileges listed above, if done
accurately. Sciandra v. Linett, 409 Pa. 595, 187 A.2d 586 (1963).

Even without the presence of a specific constitutional command, therefore, Pennsylvania libel law recognizes that society's interest in protecting
individual reputation

Page 403 U. S. 50

often yields to other important social goals. In this case, the vital needs of freedom of the press and freedom of speech persuade us that allowing private
citizens to obtain damage judgments on the basis of a jury determination that a publisher probably failed to use reasonable care would not provide
adequate "breathing space" for these great freedoms. Reasonable care is an "elusive standard" that

"would place on the press the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of
every reference to a name, picture or portrait."

Time, Inc. v. Hill, 385 U.S. at 385 U. S. 389. Fear of guessing wrong must inevitably cause self-censorship, and thus create the danger that the
legitimate utterance will be deterred. Cf. Speer v. Randall, 357 U. S. 513, 357 U. S. 526 (1958).

Moreover, we ordinarily decide civil litigation by the preponderance of the evidence. Indeed, the judge instructed the jury to decide the present case by
that standard. In the normal civil suit where this standard is employed,

"we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the
plaintiff's favor."

In re Winship, 397 U. S. 358, 397 U. S. 371 (1970) (HARLAN, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as
most serious. Not only does it mulct the defendant for an innocent misstatement -- the three-quarter million dollar jury verdict in this case could rest on
such an error -- but the possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-
censorship, which the First Amendment cannot tolerate. These dangers for freedom of speech and press led us to reject the "reasonable man" standard
of liability as "simply inconsistent" with our national commitment under the First Amendment when sought to be applied to the

Page 403 U. S. 51

conduct of a political campaign. Monitor Patriot Co. v. Roy, 401 U. S. 265, 401 U. S. 276 (1971). The same considerations lead us to reject that standard
here.

We are aware that the press has, on occasion, grossly abused the freedom it is given by the Constitution. All must deplore such excesses. In an ideal
world, the responsibility of the press would match the freedom and public trust given it. But from the earliest days of our history, this free society,
dependent as it is for its survival upon a vigorous free press, has tolerated some abuse. In 1799, James Madison made the point in quoting (and
adopting) John Marshall's answer to Talleyrand's complaints about American newspapers, American State Papers, 2 Foreign Relations 196 (U.S. Cong.
1832):

"'Among those principles deemed sacred in America, among those sacred rights considered as forming the bulwark of their liberty, which the
Government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the
importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often carried to excess, that it has sometimes
degenerated into licentiousness, is seen and lamented, but the remedy has not yet been discovered. Perhaps it is an evil inseparable from the good with
which it is allied; perhaps it is a shoot which cannot be stripped from the stalk without wounding vitally the plant from which it is torn. However desirable
those measures might be which might correct without enslaving the press, they have never yet been devised in America.'"

6 Writings of James Madison, 1790-1802, p. 336 (G. Hunt ed.1906) (emphasis in original).
This Court has recognized this imperative:

"[T]o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment

Page 403 U. S. 52

protect some erroneous publications as well as true ones."

St. Amant v. Thompson, 390 U. S. 727, 390 U. S. 732 (1968). We thus hold that a libel action, as here, by a private individual against a licensed radio
station for a defamatory falsehood in a newscast relating to his involvement in an event of public or general concern may be sustained only upon clear
and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or
not. [Footnote 18] Calculated falsehood, of course, falls outside "the fruitful exercise of the right of free speech." Garrison v. Louisiana, 379 U. S. 64, 379
U. S. 75 (1964).

Our Brothers HARLAN and MARSHALL reject the "knowing or reckless falsehood standard" in favor of a test that would require, at least, that the person
defamed establish that the publisher negligently failed to ascertain the truth of his story; they would also limit any recovery to "actual" damages. For the
reasons we have stated, the negligence standard gives insufficient breathing space to First Amendment values. Limiting recovery to actual damages has
the same defects. In the first instance, that standard, too, leaves the First Amendment insufficient elbow room within which to function. It is not simply the
possibility of a judgment for damages that results in self-censorship. The very possibility of having to engage in litigation, an expensive and protracted
process,

Page 403 U. S. 53

is threat enough to cause discussion and debate to "steer far wider of the unlawful zone," thereby keeping protected discussion from public
cognizance. Speiser v. Randall, 357 U.S. at 357 U. S. 526. Cf. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313, 402
U. S. 334-339 (1971). Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be "actual" or "punitive."
The real thrust of Brothers HARLAN's and MARSHALL's position, however, is their assertion that their proposal will not "constitutionalize" the factfinding
process. But this clearly is not the way their test would work in practice. Their approach means only that factfinding will shift from an inquiry into whether
the defamatory statements were knowingly or recklessly uttered to the inquiry whether they were negligently uttered, and if so, to an inquiry whether
plaintiff suffered "actual" damages. This latter inquiry will involve judges even more deeply in factfinding. Would the mere announcement by a state
legislature that embarrassment and pain and suffering are measurable actual losses mean that such damages may be awarded in libel actions? No
matter how the problem is approached, this Court would ultimately have to fashion constitutional definitions of "negligence" and of "actual damages."

Aside from these particularized considerations, we have repeatedly recognized that courts may not avoid an excursion into factfinding in this area simply
because it is time-consuming or difficult. We stated in Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335 (1946), that:

"The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require
interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the
circumstances

Page 403 U. S. 54

under which they were made to see whether or not they . . . are of a character which the principles of the First Amendment, as adopted by the Due
Process Clause of the Fourteenth Amendment, protect."

(Footnote omitted.) Clearly, then, this Court has an "obligation to test challenged judgments against the guarantees of the First and Fourteenth
Amendments," and, in doing so, "this Court cannot avoid making an independent constitutional judgment on the facts of the case." Jacobellis v.
Ohio, 378 U. S. 184, 378 U. S. 190 (1964). The simple fact is that First Amendment questions of "constitutional fact" compel this Court's de
novo review. See Edwards v. South Carolina, 372 U. S. 229, 372 U. S. 235 (1963); Blackburn v. Alabama, 361 U. S. 199, 361 U. S. 205 n. 5 (1960).

VI

Petitioner argues that the instructions on punitive damages either cured or rendered harmless the instructions permitting an award of general damages
based on a finding of failure of WIP to exercise reasonable care. We have doubts of the merits of the premise, [Footnote 19] but even

Page 403 U. S. 55

assuming that instructions were given satisfying the standard of knowing or reckless falsity, the evidence was insufficient to sustain an award for that
petitioner under that standard. In these cases, our

"duty is not limited to the elaboration of constitutional principles; we must also, in proper cases, review the evidence to make certain that those principles
have been constitutionally applied."

New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 285. Our independent analysis of the record leads us to agree with the Court of Appeals that
none of the proofs, considered either singly or cumulatively, satisfies the constitutional standard with the convincing clarity necessary to raise a jury
question whether the defamatory falsehoods were broadcast with knowledge that they were false or with reckless disregard of whether they were false
or not.

The evidence most strongly supporting petitioner is that concerning his visit to WIP's studio where a part-time newscaster hung up the telephone when
petitioner disputed the newscaster's statement that the District Attorney had characterized petitioner's magazines as obscene. This contact occurred,
however, after all but one of the second series of broadcasts had been aired. The incident has no probative value insofar as it bears on petitioner's case
as to the first series of broadcasts. That portion of petitioner's case was based upon the omission from the first two broadcasts at 6 and 6:30 p.m. on
October 4 of the word "alleged" preceding a characterization of the magazines distributed by petitioner. But that omission was corrected with the 8 p.m.
broadcast, and was not repeated in the five broadcasts that followed. And we agree with the analysis of the Court of Appeals that led that court, and
leads us, to conclude that the episode failed to provide evidence satisfying the New York Times standard insofar as it bore on petitioner's

Page 403 U. S. 56

case based upon the broadcasts on and after October 21 concerning petitioner's lawsuit:

"Only one broadcast took place after this conversation. It is attacked on the ground that it contains an inaccurate statement concerning plaintiff's
injunction action in that it Stated that the district attorney considered plaintiff's publications to be smut and immoral literature. The transcript of the
testimony shows that plaintiff's own attorney, when questioning defendant' representative concerning the allegedly defamatory portion of the last
broadcast, said that he was not questioning its 'accuracy.' Furthermore, his examination of the same witness brought out that defendant's representative
confirmed the story with the judge involved before the broadcast was made. We think that the episode described failed to provide evidence of actual
malice with the requisite convincing clarity to create a jury issue under federal standards."

415 F.2d at 897.

Petitioner argues finally that WIP's failure to communicate with him to learn his side of the case and to obtain a copy of the magazine for examination,
sufficed to support a verdict under the New York Times standard. But our

"cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before
publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact, entertained serious doubts as to the truth of his
publication."

St. Amant v. Thompson, 390 U.S. at 390 U. S. 731. Respondent here relied on information supplied by police officials. Following petitioner's complaint
about the accuracy of the broadcasts, WIP checked its last report with the judge who presided in the case. While we may assume that the District Court
correctly held to be defamatory

Page 403 U. S. 57

respondent's characterizations of petitioner's business as "the smut literature racket," and of those engaged in it as "girlie-book peddlers," there is no
evidence in the record to support a conclusion that respondent "in fact entertained serious doubts as to the truth" of its reports.

Affirmed.

PH CASES

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO
III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL
OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,

vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE
SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch
35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979.

RESOLUTION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were
filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the
President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without
personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines,
under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for
reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A
second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through
the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive
Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under
the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by
the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before
the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is
so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The
pertinent provision reads:
 Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to
"other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.
In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The
procedure therein provided is reiterated and clarified in this resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a
finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file
suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a
witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of
immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from
any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's
time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any
other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the
protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court
reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction.
Hence, the writs of certiorari and prohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved
to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

G.R. No. 82380 April 29, 1988

AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents.

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE
ENRILE, respondents.

FELICIANO, J.:

Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer
Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of
the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th
they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major
roles in the events proposed to be filmed.

The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as wel as the
other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion picture enclosing
a synopsis of it, the full text of which is set out below:

The Four Day Revolution is a six hour mini-series about People Power—a unique event in modern history that-made possible the
Peaceful revolution in the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy have chosen a
"docu-drama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb
revolution and the fleeing of Marcos from the country.

These character stories have been woven through the real events to help our huge international audience understand this ordinary
period inFilipino history.

First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude
to the Phihppinence —once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption
and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists.

Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear
that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a
fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to
Defense Minister Enrile, and ultimately their defection from Marcos.

The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a
supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the New People's
Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love
and the revolution.

Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and
thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the
principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary
footage filmed during the period which we hope will capture the unique atmosphere and forces that combined to overthrow
President Marcos.

David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,'
Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').

Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has
worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe
accurately depicts the complex issues and events that occurred during th period .

The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast
Corporation in Australia and Zenith Productions in the United Kingdom

The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed to be viewed in
a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing
actual documentary footage as background.

On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or
exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or
commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no
reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely
personal to them.

It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners
proceeded to film the projected motion picture.

On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with the Regional Trial
Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day
Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes
an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the
application for preliminary injunction.

On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim
would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their
right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the mini-series had not yet
been completed.

In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads
thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under
contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities
acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and
from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with,
plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the
amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should
finally decide that plaintiff was not entitled thereto.

xxx xxx xxx

(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary
Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380.

A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or
Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.

By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the
same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March
1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected
mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent.

Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy.

The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution,"
they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right
of privacy and claims that the production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is
entitled to enjoy.

Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to
film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures
are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education and entertainment. In Gonzales v. Katigbak, 3former Chief Justice Fernando,
speaking for the Court, explained:

1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their
effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable.
Nor as pointed out in Burstyn v. Wilson(343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion
lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what
involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free
expression. ...4

This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the
production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and
of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial
media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof
constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country.

The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law,
constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited
intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist publication and
dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity,
from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9

Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to
freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla
as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the
Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing
agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through
Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or
consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense
with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that
of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep
671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the
living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.'

Petitioners 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 he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). 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. 12

In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to
privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at
least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting
the licensee's claim, the Court said:

Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom
of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the
public life of Moises Padilla without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the
"hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191
[1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]:

xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on
freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the
 "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court
to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation"
(Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899).

In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression
invoked by petitioner. taking into account the interplay of those interests, we hold that under the particular circumstances presented,
and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will
have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of
essentially private concern." 13

Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a
different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not,
in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy."

1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the
exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed
motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed
and exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity
of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such
constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after
filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet
uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would
precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully
assert.

2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is,
petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded
as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The
subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the
private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his
immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is
not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan
Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986.

3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four
Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands the synopsis of the proposed film, may
be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family.

4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private
respondent was what Profs. Prosser and Keeton have referred to as a "public figure:"

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or
calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He
is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list
is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an
infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a
position where public attention is focused upon him as a person.

Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less
indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received
it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and
that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public
interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given
additional publicity, as to matters legitimately within the scope of the public interest they had aroused.

The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the
public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News"
includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality
of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers
will want, has succeeded in making its own definination of news, as a glance at any morning newspaper will sufficiently indicate. It
includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been
murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal.

The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It
extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and
travelogues. In determining where to draw the line, the courts were invited to exercise a species of censorship over what the public
may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt. 15

Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of
government in February 1986. Because his participation therein was major in character, a film reenactment of the peaceful revolution that fails to make
reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that
of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a
successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television,
he sits in a very public place, the Senate of the Philippines.

5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of
privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events.
There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16
There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing
personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of
essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA
Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's
privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent.

II

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March 1988, was
issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer
Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production
company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading,
cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation
dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio
B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151,
counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping."

Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on
Honasan in the construction of their legal basis of the right to privacy as a component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although
they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum
shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical.

For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private
respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who,
having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have
forfeited any right the might have had to protect his privacy through court processes.

WHEREFORE,

a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and

b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary
Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary
Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him.

No pronouncement as to costs.

SO ORDERED.

[G.R. No. 126466. January 14, 1999]

ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT OF APPEALS and FRANCISCO
WENCESLAO, respondents.

DECISION

"The question is not so much as who was aimed at as who was hit." (Pound, J., in Corrigan v. Bobbs-Merill Co., 228 N.Y. 58 [1920]).

BELLOSILLO, J.:

PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested freedoms of man, the issue of the right of
free expression bestirs and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting terrain,
explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes and bounds of its controversial domain. This, prominently,
is one such case.

Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal metamorphoses than his right to freely and openly
express his views. Blackstone's pontifical comment that"where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are
punished by English law . . . the liberty of the press, properly understood, is by no means infringed or violated,"found kindred expression in the landmark
opinion of England's Star Chamber in the Libelis Famosis case in 1603.[1] That case established two major propositions in the prosecution of defamatory
remarks:first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the
libel be true.

Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even the venerable Justice Holmes appeared to
waffle as he swayed from the concept of criminal libel liability under the clear and present danger rule, to the other end of the spectrum in defense of the
constitutionally protected status of unpopular opinion in free society.

Viewed in modern times and the current revolution in information and communication technology, libel principles formulated at one time or another
have waxed and waned through the years in the constant ebb and flow of judicial review. At the very least, these principles have lost much of their flavor,
drowned and swamped as they have been by the ceaseless cacophony and din of thought and discourse emanating from just about every source and
direction, aided no less by an increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been devalued by its utter
commonality; and we agree, for its logical effect is to benumb thought and sensibility on what may be considered as criminal illegitimate encroachments
on the right of persons to enjoy a good, honorable and reputable name. This may explain the imperceptible demise of criminal prosecutions for libel and
the trend to rely instead on indemnity suits to repair any damage on one's reputation.

In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R.
No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and publishing
certain articles claimed to be derogatory and offensive to private respondent Francisco Wenceslao.

Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The
Philippine Star, a daily newspaper. At the time the complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and
Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the column Jaywalker.
 Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business consultant and journalist by profession. In
1988 he served as a technical adviser of Congressman Fabian Sison, then Chairman of the House of Representatives Sub-Committee on Industrial
Policy.

During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the House Sub-Committee on Industrial
Policy, those who attended agreed to organize the First National Conference on Land Transportation (FNCLT) to be participated in by the private sector
in the transport industry and government agencies concerned in order to find ways and means to solve the transportation crisis. More importantly, the
objective of the FNCLT was to draft an omnibus bill that would embody a long-term land transportation policy for presentation to Congress. The
conference which, according to private respondent, was estimated to cost around P1,815,000.00 would be funded through solicitations from various
sponsors such as government agencies, private organizations, transport firms, and individual delegates or participants. [2]

On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco Wenceslao was elected Executive Director. As
such, he wrote numerous solicitation letters to the business community for the support of the conference.

Between May and July 1989 a series of articles written by petitioner Borjal was published on different dates in his column Jaywalker. The articles
dealt with the alleged anomalous activities of an "organizer of a conference" without naming or identifying private respondent. Neither did it refer to the
FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of petitioner together with the dates they were
published[3] -

31 May 1989

Another self-proclaimed hero of the EDSA Revolution goes around organizing seminars and conferences for a huge fee. This is a simple ploy coated in
jazzy letterheads and slick prose. The hero has the gall to solicit fees from anybody with bucks to spare. Recently, in his usual straightforward style,
Transportation Secretary Rainerio Ray Reyes, asked that his name be stricken off from the letterheads the hero has been using to implement one of his
pet seminars. Reyes said: I would like to reiterate my request that you delete my name. Note that Ray Reyes is an honest man who would confront
anybody eyeball to eyeball without blinking.

9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of the names of President Aquino and Secretary Ray Reyes. The
conference program being circulated claims that President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and
Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the conference should be unmasked as a moneymaking
gimmick.

19 June 1989

x x x some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry and to almost all government agencies. And the
letterheads carried the names of Reyes and Periquet.Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out from
Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the waste basket. Now, if the 3,000
persons and agencies approached by the organizer shelled out 1,000 each, thats easily P3 million to a project that seems so unsophisticated. But note
that one garment company gave P100,000, after which the Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment license application of the P100,000 donor.

21 June 1989

A 'conference organizer' associated with shady deals seems to have a lot of trash tucked inside his closet. The Jaywalker continues to receive
information about the mans dubious deals. His notoriety, according to reliable sources, has reached the Premier Guest House where his name is spoken
like dung.

xxx

The first information says that the 'organizer' tried to mulct half a million pesos from a garment producer and exporter who was being investigated for
violation of the rules of the Garments, Textile, Embroidery and Apparel Board. The 'organizer' told the garment exporter that the case could be fixed for a
sum of P500,000.00. The organizer got the shock of his life when the exporter told him: 'If I have that amount, I will hire the best lawyers, not you.' The
organizer left in a huff, his thick face very pale.

xxx

Friends in government and the private sector have promised the Jaywalker more 'dope' on the 'organizer.' It seems that he was not only indiscreet; he
even failed to cover his tracks. You will be hearing more of the 'organizers' exploits from this corner soon.

22 June 1989

The scheming 'organizer' we have been writing about seems to have been spreading his wings too far. A congressional source has informed the
Jaywalker that the schemer once worked for a congressman from the North as some sort of a consultant on economic affairs. The first thing the
organizer did was to initiate hearings and round-the-table discussions with people from the business, export and -- his favorite -- the garments sector.

xxx

The 'organizers' principal gamely went along, thinking that his 'consultant' had nothing but the good of these sectors in mind. It was only later that he
realized that the 'consultant' was acting with a burst of energy 'in aid of extortion.' The 'consultant' was fired.

xxx

There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate under a guise of a well-meaning reformist. He
has intellectual pretensions - and sometimes he succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naive
newspaper people. He has been turning out a lot of funny-looking advice on investments, export growth, and the like.

xxx

A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influence-peddlers from entering the premises of his
department. But the Cabinet man might not get his wish. There is one 'organizer' who, even if physically banned, can still concoct ways of doing his
thing. Without a tinge of remorse, the 'organizer' could fill up his letterheads with names of Cabinet members, congressmen, and reputable people from
the private sector to shore up his shady reputation and cover up his notoriety.
 3 July 1989

A supposed conference on transportation was a big failure. The attendance was very poor and the few who participated in the affair were mostly leaders
of jeepney drivers groups. None of the government officials involved in regulating public transportation was there. The big names in the industry also did
not participate. With such a poor attendance, one wonders why the conference organizers went ahead with the affair and tried so hard to convince 3,000
companies and individuals to contribute to the affair.

xxx

The conference was doomed from the start. It was bound to fail. The personalities who count in the field of transportation refused to attend the affair or
withdrew their support after finding out the background of the organizer of the conference. How could a conference on transportation succeed without
the participation of the big names in the industry and government policy-makers?

Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was the organizer alluded to in petitioner Borjals
columns.[4] In a subsequent letter to The Philippine Star, private respondent refuted the matters contained in petitioner Borjals columns and openly
challenged him in this manner -

To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to relinquish this position in case it is found that I have
misappropriated even one peso of FNCLT money. On the other hand, if I can prove that Borjal has used his column as a hammer to get clients for his
PR Firm, AA Borjal Associates, he should resign from the STAR and never again write a column. Is it a deal?[5]

Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner Borjal for unethical conduct. He accused
petitioner Borjal of using his column as a form of leverage to obtain contracts for his public relations firm, AA Borjal Associates.[6] In turn, petitioner Borjal
published a rejoinder to the challenge of private respondent not only to protect his name and honor but also to refute the claim that he was using his
column for character assassination.[7]

Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel against petitioners Borjal and Soliven,
among others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for insufficiency of
evidence. The dismissal was sustained by the Department of Justice and later by the Office of the President.

On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel subject of the instant case.[8] In their
answer, petitioners interposed compulsory counterclaims for actual, moral and exemplary damages, plus attorneys fees and costs. After due
consideration, the trial court decided in favor of private respondent Wenceslao and ordered petitioners Borjal and Soliven to indemnify private
respondent P1,000,000.00 for actual and compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary
damages, P200,000.00 for attorneys fees, and to pay the costs of suit.

The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award to P110,000.00 actual
damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate
court ruled inter alia that private respondent was sufficiently identifiable, although not named, in the questioned articles; that private respondent was in
fact defamed by petitioner Borjal by describing him variously as a "self-proclaimed hero," "a conference organizer associated with shady deals who has
a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that petitioners claim of privilege communication was unavailing
since the privileged character of the articles was lost by their publication in a newspaper of general circulation; that petitioner could have performed his
office as a newspaperman without necessarily transgressing the rights of Wenceslao by calling the attention of the government offices concerned to
examine the authority by which Wenceslao acted, warning the public against contributing to a conference that, according to his perception, lacked the
univocal indorsement of the responsible government officials, or simply informing the public of the letters Wenceslao wrote and the favors he requested
or demanded; and, that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretentions to Wenceslao,
petitioner Borjal crossed the thin but clear line that separated fair comment from actionable defamation.

Private respondent manifested his desire to appeal that portion of the appellate courts decision which reduced the amount of damages awarded
him by filing with this Court a Petition for Extension of Time to File Petition and a Motion for Suspension of Time to File Petition.[9] However, in a
Resolution dated 27 May 1996, the Second Division denied both motions: the first, for being premature, and the second, for being a wrong remedy.

On 20 November 1996 when the First Division consolidated and transferred the present case to the Second Division, there was no longer any
case thereat with which to consolidate this case since G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months
earlier.

On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of 12 September
1996. Hence the instant petition for review. The petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was
sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious consideration to the findings of the Department of
Justice and the Office of the President that private respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding
that the degree of proof required in a preliminary investigation is merely prima facie evidence which is significantly less than the preponderance of
evidence required in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the
"public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged character because of their
publication in a newspaper of general circulation; (f) in ruling that private respondent has a valid cause of action for libel against petitioners although he
failed to prove actual malice on their part, and that the prosecutors of the City of Manila, the Department of Justice, and eventually, the Office of the
President, had already resolved that there was no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should be
held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate courts ruling, the dismissal
of the complaint against them for lack of merit, and the award of damages on their counterclaim.

The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he
be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third
person could identify him as the object of the libelous publication.[10] Regrettably, these requisites have not been complied with in the case at bar.

In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently identified Wenceslao as the "conference
organizer." It cited the First National Conference on Land Transportation, the letterheads used listing different telephone numbers, the donation
of P100,000.00 from Juliano Lim and the reference to the "organizer of the conference" - the very same appellation employed in all the column items - as
having sufficiently established the identity of private respondent Wenceslao for those who knew about the FNCLT who were present at its inception, and
who had pledged their assistance to it.

We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles written by Borjal do not identify private
respondent Wenceslao as the organizer of the conference.The first of the Jaywalker articles which appeared in the 31 May 1989 issue of The Philippine
Star yielded nothing to indicate that private respondent was the person referred to therein. Surely, as observed by petitioners, there were millions
of "heroes" of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in
his 9 June 1989 column petitioner Borjal wrote about the "so-called First National Conference on Land Transportation whose principal organizers are not
specified" (italics supplied).[11] Neither did the FNCLT letterheads[12]disclose the identity of the conference organizer since these contained only an
enumeration of names where private respondent Francisco Wenceslao was described as Executive Director and Spokesman and not as a conference
organizer.[13] The printout[14] and tentative program[15] of the conference were devoid of any indication of Wenceslao as organizer. The printout which
contained an article entitled "Who Organized the NCLT?" did not even mention private respondent's name, while the tentative program only
denominated private respondent as "Vice Chairman and Executive Director," and not as organizer.

No less than private respondent himself admitted that the FNCLT had several organizers and that he was only a part of the organization, thus -
I would like to clarify for the record that I was only a part of the organization. I was invited then because I was the head of the technical panel of the
House of Representatives Sub-Committee on Industrial Policy that took care of congressional hearings.[16]

Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's columns. The former even called up
columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles. [17] His letter to the editor published in the 4 June 1989 issue
of The Philippine Star even showed private respondent Wenceslao's uncertainty -

Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National Conference on Land Transportation (June 29-30) and
me in the second paragraph of his May 31 column x x x[18]

Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to
note that the revelation of the identity of the person alluded to came not from petitioner Borjal but from private respondent himself when he supplied the
information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he was the "organizer" of the FNCLT referred to in the
Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case
falls.

The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has been sufficiently identified as the subject of
Borjal's disputed comments, we now proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo.

The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the disputed articles constitute privileged
communications as to exempt the author from liability.

The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged in character under the provisions of Art.
354 of The Revised Penal Code which state -

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 not 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.

Respondent court explained that the writings in question did not fall under any of the exceptions described in the above-quoted article since these
were neither "private communications" nor "fair and true report x x x without any comments or remarks." But this is incorrect.

A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are
not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art. VI, of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged
communications containing defamatory imputations are not actionable unless found to have been made without good intention or justifiable motive. To
this genre belong "private communications" and "fair and true report without any comments or remarks."

Indisputably, petitioner Borjals questioned writings are not within the exceptions of Art. 354 of The Revised Penal Code for, as correctly observed
by the appellate court, they are neither private communications nor fair and true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications
since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's
penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. [19] As early as 1918, in United States v.
Caete,[20] this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of
speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.

The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v. Gutierrez[21] and reiterated in Santos v.
Court of Appeals[22] -

To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing violence to the concept of
privileged communications implicit in the freedom of the press. As was so well put by Justice Malcolm in Bustos: Public policy, the welfare of society, and
the orderly administration of government have demanded protection of public opinion. The inevitable and incontestable result has been the development
and adoption of the doctrine of privilege.

The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui generis, be protective of public
opinion. This closely adheres to the democratic theory of free speech as essential to collective self-determination and eschews the strictly libertarian
view that it is protective solely of self- expression which, in the words of Yale Sterling Professor Owen Fiss,[23] makes its appeal to the individualistic
ethos that so dominates our popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the
penal provision exempting from liability only private communications and fair and true report without comments or remarks defeats, rather than
promotes, the objective of the rule on privileged communications, sadly contriving as it does, to suppress the healthy effloresence of public debate and
opinion as shining linchpins of truly democratic societies.

To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The
doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed
innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed
against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be
actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on
established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.[24]

There is no denying that the questioned articles dealt with matters of public interest. In his testimony, private respondent spelled out the objectives
of the conference thus -

x x x x The principal conference objective is to come up with a draft of an Omnibus Bill that will embody a long term land transportation policy for
presentation to Congress in its next regular session in July.Since last January, the National Conference on Land Transportation (NCLT), the conference
secretariat, has been enlisting support from all sectors to ensure the success of the project. [25]

Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public -

Q: Now, in this first letter, you have attached a budget and it says here that in this seminar of the First National Conference
on Land Transportation, you will need around One million eight hundred fifteen thousand pesos, is that right?

A: That was the budget estimate, sir.

Q: How do you intend as executive officer, to raise this fund of your seminar?

A: Well, from sponsors such as government agencies and private sectors or organizations as well as individual transport firms and from individual
delegates/participants.[26]
 The declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded
no doubt lend to its activities as being genuinely imbued with public interest. An organization such as the FNCLT aiming to reinvent and reshape the
transportation laws of the country and seeking to source its funds for the project from the public at large cannot dissociate itself from the public character
of its mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of
the qualifications and integrity of the personalities behind it.

This in effect is the strong message in New York Times v. Sullivan[27] which the appellate court failed to consider or, for that matter, to heed. It
insisted that private respondent was not, properly speaking, a "public offical" nor a "public figure," which is why the defamatory imputations against him
had nothing to do with his task of organizing the FNCLT.

New York Times v. Sullivan was decided by the U. S. Supreme Court in the 1960s at the height of the bloody rioting in the American South over
racial segregation. The then City Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid political
advertisement espousing racial equality and describing police atrocities committed against students inside a college campus. As commissioner having
charge over police actions Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage; consequently, he sued New York
Times on the basis of what he believed were libelous utterances against him.

The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding that honest criticisms on the conduct
of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public
figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual
malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.

The raison d'etre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions
on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were
believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it.[28]

In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also
defined "public figure" in Ayers Production Pty., Ltd. v. Capulong[29] as -

x x x x a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in
his doings, his affairs and his character, has become a public personage. He is, in other words, a celebrity. Obviously, to be included in this category are
those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist,
or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary
soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position
where the public attention is focused upon him as a person.

The FNCLT was an undertaking infused with public interest. It was promoted as a joint project of the government and the private sector, and
organized by top government officials and prominent businessmen. For this reason, it attracted media mileage and drew public attention not only to the
conference itself but to the personalities behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status
of a public figure.

But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public
figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public
figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly become less
so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The publics
primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the
participant's prior anonymity or notoriety.[30]

There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of petitioner Borjal against
respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive Director of
the FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to
generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost
honesty, integrity and competence. These are matters about which the public has the right to be informed, taking into account the very public character
of the conference itself.

Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer of the conference." One is tempted to
wonder if it was by some mischievous gambit that he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no
matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed
by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well
include vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials. [31]

The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the absence of proof to the
contrary, the question of privilege is immaterial.

We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys
the presumption of malice.[32] The onus of proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the
defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. [33]

Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an
intention to do ulterior and unjustifiable harm.[34] Malice is bad faith or bad motive.[35] It is the essence of the crime of libel.[36]

In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question petitioner Borjal acted with malice?

Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to inflict unjustifiable
harm on his reputation, or that the articles were written and published without good motives or justifiable ends. On the other hand, we find petitioner
Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and
denounce what he perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and
reputation, but we do not consider that petitioner Borjal has violated that right in this case nor abused his press freedom.

Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they
are false or in reckless disregard of whether they are false or not.[37] "Reckless disregard of what is false or not" means that the defendant entertains
serious doubt as to the truth of the publication,[38] or that he possesses a high degree of awareness of their probable falsity.[39]

The articles subject of the instant case can hardly be said to have been written with knowledge that these are false or in reckless disregard of what
is false or not. This is not to say however that the very serious allegations of petitioner Borjal assumed by private respondent to be directed against him
are true. But we nevertheless find these at least to have been based on reasonable grounds formed after the columnist conducted several personal
interviews and after considering the varied documentary evidence provided him by his sources. Thus, the following are supported by documentary
evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the
processing and release of the import approval and certificate of availability of a garment firm in exchange for the monetary contribution of Juliano Lim,
which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in processing applications and clarifying
that all applicants were treated equally;[40] (b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT notwithstanding
that he had previously declined the offer;[41] and, (c) that despite the fact that then President Aquino and her Secretary of Transportation Rainerio Reyes
declined the invitation to be guest speakers in the conference, their names were still included in the printout of the FNCLT.[42] Added to these are the
admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB in exchange for monetary
contributions to the FNCLT;[43] (b) he included the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the
conference notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; [44] and, (c) he used different letterheads and telephone
numbers.[45]
 Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be
held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of
fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in
our democracy.[46] In Bulletin Publishing Corp. v. Noel[47] we held -

A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and
keeps within the standards of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to
reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York
Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of "actual malice" on
the part of the person making the libelous statement.

At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos,[48] that "the
interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with
reference to comments upon his official acts.

The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no necessity to pass upon them.

We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their
noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and
in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a
veritable Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is
to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the
freedom of others. If there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout x x x a lively sense of responsibility, a
free press may readily become a powerful instrument of injustice." [49]

Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we have always
strongly maintained, as we do now, that freedom of expression is man's birthright - constitutionally protected and guaranteed, and that it has become the
singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it is also worth keeping in mind that the press is the
servant, not the master, of the citizenry, and its freedom does not carry with it an unrestricted hunting license to prey on the ordinary citizen.[50]

On petitioners counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private respondent cannot be said to
have instituted the present suit in abuse of the legal processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively,
fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages. On the contrary, private respondent acted within
his rights to protect his honor from what he perceived to be malicious imputations against him. Proof and motive that the institution of the action was
prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly established to entitle the victim to damages. The law
could not have meant to impose a penalty on the right to litigate, nor should counsels fees be awarded every time a party wins a suit.[51]

For, concluding with the wisdom in Warren v. Pulitzer Publishing Co.[52] -

Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, a judge with his
jury, we are, all of us, the subject of public discussion. The view of our court has been thus stated: It is only in despotisms that one must speak sub rosa,
or in whispers, with bated breath, around the corner, or in the dark on a subject touching the common welfare. It is the brightest jewel in the crown of the
law to speak and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its Resolution of 12 September 1996
denying reconsideration are REVERSED and SET ASIDE, and the complaint for damages against petitioners is DISMISSED. Petitioners counterclaim
for damages is likewise DISMISSED for lack of merit. No costs.

SO ORDERED.

G.R. No. 118971. September 15, 1999]

RODOLFO R. VASQUEZ, petitioner, vs. COURT OF APPEALS, THE REGIONAL TRIAL COURT OF MANILA, BRANCH 40, and THE PEOPLE OF
THE PHILIPPINES, respondents.

DECISION

MENDOZA, J.:

The question for determination in this case is the liability for libel of a citizen who denounces a barangay official for misconduct in office. The
Regional Trial Court of Manila, Branch 40, found petitioner guilty and fined him P1,000.00 on the ground that petitioner failed to prove the truth of the
charges and that he was motivated by vengeance in uttering the defamatory statement. On appeal, the Court of Appeals, in a decision[1] dated February
1, 1995, affirmed. Hence, this petition for review. The decision appealed from should be reversed.

The facts are not in dispute. Petitioner Rodolfo R. Vasquez is a resident of the Tondo Foreshore Area. Sometime in April 1986, he and some 37
families from the area went to see then National Housing Authority (NHA) General Manager Lito Atienza regarding their complaint against their
Barangay Chairman, Jaime Olmedo. After their meeting with Atienza and other NHA officials, petitioner and his companions were met and interviewed
by newspaper reporters at the NHA compound concerning their complaint. The next day, April 22, 1986, the following news article[2] appeared in the
newspaper Ang Tinig ng Masa:

Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo Foreshore Area na umanoy inagawan ng lupa ng
kanilang barangay chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul 1980.

Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6, Tondo Foreshore Area, sa mga project manager ng NHA
upang makamkam ang may 14 na lote ng lupa sa naturang lugar.

Binanggit ni Rodolfo R. Vasquez, 40, Tagapagsalita ng (mga) pamilyang apektado, na umaabot lang sa 487.87 metro kuwadrado ang kabuuan ng mga
lupa na kinatitirikan ng mga barung-barung ng 38 pamilya.
Naninirahan na kami sa mga lupang nabanggit sapul 1950 at pinatunayan sa mga survey ng NHA noong nakalipas na taon na may karapatan kami sa
mga lupang ito ng pamahalaan, ani Vasquez.

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal
officers ng NHA, sabi ni Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang
barangay chairman kaya nakalusot ang mga ginawa nitong katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at maging sa mga
nakawan ng manok.

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang
pagpatay sa akin kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.

Based on the newspaper article, Olmedo filed a complaint for libel against petitioner alleging that the latters statements cast aspersions on him
and damaged his reputation. After conducting preliminary investigation, the city prosecutor filed the following information in the Regional Trial Court of
Manila, Branch 40:

The undersigned accuses RODOLFO R. VASQUEZ of the crime of libel committed as follows:

That on or about April 22, 1986, in the city of Manila, Philippines, the said accused, with malicious intent of impeaching the reputation and character of
one Jaime Olmedo, chairman of Barangay 66, Zone 6 in Tondo, Manila, and with evident intent of exposing him to public hatred, contempt, ridicule, did
then and there willfully, unlawfully, feloniously and maliciously caused the publication of an article entitled 38 Pamilya Inagawan ng Lupa in Ang Tinig ng
Masa, a daily newspaper sold to the public and of general circulation in the Philippines in its April 22, 1986 issue, which portion of the said article reads
as follows:

Nananawagan kahapon kay pangulong Corazon Aquino ang 38 mahihirap na pamilya sa Tondo Foreshore Area na umanoy inagawan ng lupa ng
kanilang barangay chairman sa pakikipagsabwatan sa ilang pinuno ng National Housing Authority sapul 1980.

Sinabi nila na nakipagsabwatan umano si Chairman Jaime Olmedo ng barangay 66, Zone 6, Tondo Foreshore Area sa mga project manager ng NHA
upang makamkam ang may 14 na lote ng lupa sa naturang lugar.

x x x Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at
legal officers ng NHA, sabi ni Vasquez.

Sinabi rin ng mga pamilya na protektado ng dating pinuno ng city hall ng Maynila, MHS Minister Conrado Benitez, at ilang pinuno ng pulisya ang
barangay chairman kaya nakalusot ang mga ginawa nitong katiwalian.

Bukod sa pagkamkam ng mga lupaing gobyerno, kasangkot din umano si Olmedo sa mga ilegal na pasugalan sa naturang lugar at maging sa mga
nakawan ng manok. x x x

with which statements, the said accused meant and intended to convey, as in fact he did mean and convey false and malicious imputations that said
Jaime Olmedo is engaged in landgrabbing and involved in illegal gambling and stealing of chickens at the Tondo Foreshore Area, Tondo, Manila, which
statements, as he well knew, were entirely false and malicious, offensive and derogatory to the good name, character and reputation of said Jaime
Olmedo, thereby tending to impeach, besmirch and destroy the honor, character and reputation of Jaime Olmedo, as in fact, the latter was exposed to
dishonor, discredit, public hatred, contempt and ridicule.

Contrary to law.

Upon being arraigned, petitioner entered a plea of not guilty, whereupon the case was tried. The prosecution presented Barangay Chairman
Olmedo and his neighbor, Florentina Calayag, as witnesses. On the other hand, the defense presented Ciriaco Cabuhat, Nicasio Agustin, Estrelita Felix,
Fernando Rodriguez all residents of the Tondo Foreshore Area and petitioner as its witnesses.

On May 28, 1992, the trial court rendered judgment finding petitioner guilty of libel and sentencing him to pay a fine of P1,000.00. On appeal, the
Court of Appeals affirmed in toto. Hence, this petition for review. Petitioner contends that

I. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT PINPOINTING PETITIONER AS THE
SOURCE OF THE ALLEGED LIBELOUS ARTICLE.

II. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT THAT PETITIONER IMPUTED THE
QUESTIONED ACTS TO COMPLAINANT.

III. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT THAT THE ALLEGED IMPUTATIONS
WERE MADE MALICIOUSLY.

IV. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT WHICH FAILED TO APPRECIATE
PETITIONERS DEFENSE OF TRUTH.

V. THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT THAT ALL THE ELEMENTS OF LIBEL
WERE PROVEN.

We will deal with these contentions in the order in which they are made.

First. Petitioner claims he was unfairly singled out as the source of the statements in the article when any member of the 38 complainant-families
could have been the source of the alleged libelous statements.[3] The reference is to the following portion of the decision of the Court of Appeals:

. . . In his sworn statement, appellant admitted he was the source of the libelous article (Exh. B). He affirmed this fact when he testified in open court as
follows: That his allegation on the act of landgrabbing by Olmedo was based on the alleged report and pronouncements of the NHA representatives (p.
5, tsn, Oct. 18, 1989); that said allegations were made by him before the local press people in the pursuit of fairness and truthfulness and not in bad faith
(pp. 8-9, id.); that the only inaccurate account in the published article of Ang Tinig ng Masa is the reference to the 487.87 sq.m. lot, on which Olmedos
residence now stands, attributed by the reporter as the lot currently occupied by appellants and his fellow complainants (pp. 4-5, tsn, Nov. 15, 1989; pp.
4-5, tsn, January 15, 1990); and that after the interview, he never expected that his statement would be the cause of the much-publicized libelous article
(pp. 4-6, tsn, Nov. 15, 1989).[4]
 It is true petitioner did not directly admit that he was the source of the statements in the questioned article. What he said in his sworn
statement[5] was that the contents of the article are true in almost all respects, thus:

9. Tama ang nakalathala sa pahayagang Ang Masa maliban na lang sa tinutukoy na ako at ang mga kasamahang maralitang taga-lungsod
ay nakatira sa humigit kumulang 487.87 square meters sapagkat ang nabanggit na 487.87 square meters ay siyang kinatitirikan ng
bahay ni Barangay Chairman Olmedo kung saan nakaloob ang anim na lote - isang paglabag sa batas o regulasyon ng NHA;

10. Ang ginawa kong pahayag na nailathala sa Ang Masa ay sanhi ng aking nais na maging mabuting mamamayan at upang maituwid ang
mga katiwaliang nagaganap sa Tondo Foreshore Area kung saan ako at sampu ng aking mga kasamang maralitang taga-lungsod ay
apektado at naaapi.

This was likewise what he stated in his testimony in court both on direct [6] and on cross-examination.[7] However, by claiming that what he had told the
reporter was made by him in the performance of a civic duty, petitioner in effect admitted authorship of the article and not only of the statements
attributed to him therein, to wit:

Pawang lupa ng gobyerno ang mga lupa at ilegal man na patituluhan, nagawa ito ni Olmedo sa pakikipagsabwatan sa mga project manager at legal
officers ng NHA, sabi ni Vasquez.

....

Sapin-sapin na ang mga kaso na idinulog namin noong nakalipas na mga taon, pero pinawalang saysay ang lahat ng iyon, kabilang na ang tangkang
pagpatay sa akin kaugnay ng pagrereklamo sa pangangamkam ng lupa noong 1984, sabi pa ni Vasquez.

Petitioner cannot claim to have been the source of only a few statements in the article in question and point to the other parties as the source of
the rest, when he admits that he was correctly identified as the spokesperson of the families during the interview.

Second. Petitioner points out that the information did not set out the entire news article as published. In fact, the second statement attributed to
petitioner was not included in the information. But, while the general rule is that the information must set out the particular defamatory words verbatim
and as published and that a statement of their substance is insufficient, [8] United States v. Eguia, 38 Phil. 857 (1918).8 a defect in this regard may be
cured by evidence.[9] In this case, the article was presented in evidence, but petitioner failed to object to its introduction. Instead, he engaged in the trial
of the entire article, not only of the portions quoted in the information, and sought to prove it to be true. In doing so, he waived objection based on the
defect in the information. Consequently, he cannot raise this issue at this late stage.[10]

Third. On the main issue whether petitioner is guilty of libel, petitioner contends that what he said was true and was made with good motives and
for justifiable ends.

To find a person guilty of libel under Art. 353 of the Revised Penal Code, the following elements must be proved: (a) the allegation of a
discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.[11]

An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or defect, real or imaginary,
or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to blacken the
memory of one who is dead.[12]

There is publication if the material is communicated to a third person. [13] It is not required that the person defamed has read or heard about the
libelous remark. What is material is that a third person has read or heard the libelous statement, for a mans reputation is the estimate in which others
hold him, not the good opinion which he has of himself.[14]

On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was able to identify him as the
object of the defamatory statement.[15]

Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code provides:

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 security 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 not 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.

In this case, there is no doubt that the first three elements are present. The statements that Olmedo, through connivance with NHA officials, was
able to obtain title to several lots in the area and that he was involved in a number of illegal activities (attempted murder, gambling and theft of fighting
cocks) were clearly defamatory. There is no merit in his contention that landgrabbing, as charged in the information, has a technical meaning in
law.[16] Such act is so alleged and proven in this case in the popular sense in which it is understood by ordinary people. As held in United States v.
Sotto:[17]

. . . [F]or the purpose of determining the meaning of any publication alleged to be libelous that construction must be adopted which will give to the matter
such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally understand what was uttered. The
published matter alleged to be libelous must be construed as a whole. In applying these rules to the language of an alleged libel, the court will disregard
any subtle or ingenious explanation offered by the publisher on being called to account. The whole question being the effect the publication had upon the
minds of the readers, and they not having been assisted by the offered explanation in reading the article, it comes too late to have the effect of removing
the sting, if any there be, from the words used in the publication.

Nor is there any doubt that the defamatory remarks referred to complainant and were published. Petitioner caused the publication of the
defamatory remarks when he made the statements to the reporters who interviewed him.[18]

The question is whether from the fact that the statements were defamatory, malice can be presumed so that it was incumbent upon petitioner to
overcome such presumption. Under Art. 361 of the Revised Penal Code, if the defamatory statement is made against a public official with respect to the
discharge of his official duties and functions and the truth of the allegation is shown, the accused will be entitled to an acquittal even though he does not
prove that the imputation was published with good motives and for justifiable ends.[19]

In this case, contrary to the findings of the trial court, on which the Court of Appeals relied, petitioner was able to prove the truth of his charges
against the barangay official. His allegation that, through connivance with NHA officials, complainant was able to obtain title to several lots at the Tondo
Foreshore Area was based on the letter[20] of NHA Inspector General Hermogenes Fernandez to petitioners counsel which reads:

09 August 1983

Atty. Rene V. Sarmiento

Free Legal Assistance Group (FLAG)

55 Third Street

New Manila, Quezon City

Dear Atty. Sarmiento:

In connection with your request that you be furnished with a copy of the results of the investigation regarding the complaints of some Tondo residents
against Chairman Jaime Olmedo, we are providing you a summary of the findings based on the investigation conducted by our Office which are as
follows:

1. Based on the subdivision plan of Block 260, SB 8, Area III, Jaime Olmedos present structure is constructed on six lots which were awarded before by
the defunct Land Tenure Administration to different persons as follows:

Lot 4 - Juana Buenaventura - 79.76 sq. m.

Lot 6 - Servando Simbulan - 48.50 sq. m.

Lot 7 - Alfredo Vasquez - 78.07 sq. m.

Lot 8 - Martin Gallardo - 78.13 sq. m.

Lot 9 - Daniel Bayan - 70.87 sq. m.

Lot 1 - Fortunato de Jesus - 85.08 sq. m. (OIT No. 7800)

The above-mentioned lots were not yet titled, except for Lot 1. Fortunato de Jesus sold the said lot to a certain Jovita Bercasi, a sister-in-law of Jaime
Olmedo. The other remaining lots were either sold to Mr. Olmedo and/or to his immediate relatives.

Lot 14 is also titled in the name of Mariano Bercasi, father-in-law of Jaime Olmedo, with an area of 47.40 sq. m.

The lot assigned to Chairman Olmedo has a total area of 487.87 sq. m.

2. Block 261, SB 8, Area III

Lot No. 7 is titled in the name of Jaime Olmedo, consisting an area of 151.67 sq. m. A four-door apartment owned by Mr. Olmedo is being rented to
uncensused residents.

3. Block 262, SB 8, Area III

Lot No. 13 is allocated to Delfin Olmedo, nephew of Jaime Olmedo, but this lot is not yet titled.

4. Block 256, SB 5, Area III

Victoria Olmedo, uncensused, is a daughter of Jaime Olmedo. Her structure is erected on a non-titled lot. The adjacent lot is titled in the name of
Victoria. It was issued OCT No. 10217 with an area of 202.23 sq. m. Inside this compound is another structure owned and occupied by Amelia Dofredo,
a censused houseowner. The titled lot of Victoria now has an area of 338.20 sq. m.

For your information.

(s/t) HERMOGENES C. FERNANDEZ

Inspector General

Public Assistance & Action Office

In addition, petitioner acted on the basis of two memoranda,[21] both dated November 29, 1983, of then NHA General Manager Gaudencio Tobias
recommending the filing of administrative charges against the NHA officials responsible for the alleged irregular consolidation of lots [in Tondo to Jaime
and Victoria Olmedo.]

With regard to the other imputations made by petitioner against complainant, it must be noted that what petitioner stated was that various charges
(for attempted murder against petitioner, gambling, theft of fighting cocks) had been filed by the residents against their barangay chairman but these had
all been dismissed. Petitioner was able to show that Olmedos involvement in the theft of fighting cocks was the subject of an affidavit-complaint,[22] dated
October 19, 1983, signed by Fernando Rodriguez and Ben Lareza, former barangay tanods of Barangay 66, Zone 6, Tondo. Likewise, petitioner
presented a resolution,[23] dated March 10, 1988, of the Office of the Special Prosecutor in TBP-87-03694, stating that charges of malversation and
corrupt practices had been filed against Olmedo and nine (9) other barangay officials but the same were dismissed. Indeed, the prosecutions own
evidence bears out petitioners statements. The prosecution presented the resolution[24]in TBP Case No. 84-01854 dismissing the charge of attempted
murder filed by petitioner against Jaime Olmedo and his son-in-law, Jaime Reyes. The allegation concerning this matter is thus true.

It was error for the trial court to hold that petitioner only tried to prove that the complainant [barangay chairman] is guilty of the crimes alluded to;
accused, however, has not proven that the complainant committed the crimes. For that is not what petitioner said as reported in the Ang Tinig ng
Masa. The fact that charges had been filed against the barangay official, not the truth of such charges, was the issue.

In denouncing the barangay chairman in this case, petitioner and the other residents of the Tondo Foreshore Area were not only acting in their
self-interest but engaging in the performance of a civic duty to see to it that public duty is discharged faithfully and well by those on whom such duty is
incumbent. The recognition of this right and duty of every citizen in a democracy is inconsistent with any requirement placing on him the burden of
proving that he acted with good motives and for justifiable ends.

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public official concerned
proves that the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false or
not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan,[25] which this Court has cited with approval in several of its own
decisions.[26] This is the rule of actual malice. In this case, the prosecution failed to prove not only that the charges made by petitioner were false but also
that petitioner made them with knowledge of their falsity or with reckless disregard of whether they were false or not.
 A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for
making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed
freedom of expression. Such a rule would deter citizens from performing their duties as members of a self- governing community. Without free speech
and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, public discussion is a political duty
and the greatest menace to freedom is an inert people. [27]

Complainant contends that petitioner was actuated by vengeful political motive rather than by his firm conviction that he and his fellow residents
had been deprived of a property right because of acts attributable to their barangay chairman. The Court of Appeals, sustaining complainants contention,
held:

That the said imputations were malicious may be inferred from the facts that appellant and complainant are enemies, hence, accused was motivated by
vengeance in uttering said defamatory statements and that accused is a leader of Ciriaco Cabuhat who was defeated by complainant when they ran for
the position of barangay captain. . . .[28]

As already stated, however, in accordance with Art. 361, if the defamatory matter either constitutes a crime or concerns the performance of official
duties, and the accused proves the truth of his charge, he should be acquitted.[29]

Instead of the claim that petitioner was politically motivated in making the charges against complainant, it would appear that complainant filed this
case to harass petitioner. Art. 360 of the Revised Penal Code provides:

Persons responsible.Any person who shall publish, exhibit, or cause the publication or exhibition of any defamation in writing or by similar means, shall
be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper, magazine or serial publication, shall be responsible
for the defamations contained therein to the same extent as if he were the author thereof. . . .

Yet, in this case, neither the reporter, editor, nor the publisher of the newspaper was charged in court. What was said in an analogous case[30] may
be applied mutatis mutandis to the case at bar:

It is curious that the ones most obviously responsible for the publication of the allegedly offensive news report, namely, the editorial staff and the
periodical itself, were not at all impleaded. The charge was leveled against the petitioner and, curiouser still, his clients who have nothing to do with the
editorial policies of the newspaper. There is here a manifest effort to persecute and intimidate the petitioner for his temerity in accusing the ASAC agents
who apparently enjoyed special privilegesand perhaps also immunitiesduring those oppressive times. The non-inclusion of the periodicals was a
transparent hypocrisy, an ostensibly pious if not at all convincing pretense of respect for freedom of expression that was in fact one of the most
desecrated liberties during the past despotism. [31]

WHEREFORE, the decision of the Court of Appeals is REVERSED and the petitioner is ACQUITTED of the crime charged.

SO ORDERED.

CIRIACO BOY GUINGGUING, G.R. No. 128959

Petitioner,

Present:

PUNO, J.,

Chairman,

- versus - AUSTRIA-MARTINEZ,

CALLEJO, SR.,

TINGA, and

CHICO-NAZARIO, JJ.

THE HONORABLE COURT

OF APPEALS and THE

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondents.

September 30, 2005

x-------------------------------------------------------------------- x

DECISION
TINGA, J.:

The liberty of the press is indeed essential. Whoever would overthrow the liberty of a nation must begin by subduing the
freeness of speech.
 - Benjamin Franklin[1]

The right of free expression stands as a hallmark of the modern democratic and humane state.[2] Not only does it assure a persons right to say

freely what is thought freely, it likewise evinces the politys freedom from psychological insecurity. This fundamental liberty is translated into the

constitutional guarantee that no law shall be passed abridging the freedom of speech, of expression, or the press, [3] contained in the Bill of

Rights,[4] which itself obtains a position of primacy in our fundamental law.[5]

Criminal libel laws present a special problem. At face value, they might strike as laws passed that abridge the freedom of speech, expression, or the

press. Whatever seeming conflict between these two precepts has long been judicially resolved with the doctrine that libelous speech does not fall within

the ambit of constitutional protection. Nonetheless, in ascertaining what class of materials may be considered as libelous, the freedom of expression

clause, its purposes as well as the evils it guards against, warrant primordial consideration and application.

Before this Court is a Petition for Review under Rule 45 of the 1997 Rules of Civil Procedure, assailing the Decision[6] and the Resolution[7] of the Court

of Appeals (CA) dated 29 July 1996 and 3 October 1996, respectively, in CA-G.R. CR No. 16413. The CA affirmed with modification[8] the

decision[9] rendered by the Regional Trial Court (RTC), Branch 7 of Cebu City, finding Ciriaco Boy Guingguing (petitioner) and Segundo Lim (Lim) guilty

beyond reasonable doubt of the crime of libel. This petition for certiorari was filed by petitioner alone, hence the verdict of guilt with respect to Lim had

already become final and executory.

The antecedent facts follow.

This case originated from a criminal complaint for libel filed by Cirse Choy Torralba (complainant) against Lim and petitioner under Criminal

Case No. CBU-26582. Complainant was a broadcast journalist who handled two programs for radio stations DYLA and DYFX. The radio stations were

based in Cebu City but the programs were aired over a large portion of the Visayas and Mindanao. [10]

On 13 October 1991, Lim caused the publication of records of criminal cases filed against complainant as well as photographs [11] of the latter

being arrested. These were published by means of a one-page advertisement paid for by Lim in the Sunday Post, a weekly publication edited and

published by petitioner. The Sunday Post was circulated in the province of Bohol, as well as in the Visayas and Mindanao. [12] The full text of the

advertisement which was the basis of the information[13] for libel reads:

REQUEST FOR PUBLIC SERVICE

ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX, CEBU CITY

TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE DO ENLIGHTEN ME REGARDING THE DISPOSITION OF THE
FOLLOWING WHICH APPEAR HEREUNDER. THE CASES WERE FOUND IN THE BLOTTER OF THE CEBU CITY
POLICE DEPARTMENT. PLEASE DO TELL ME THE STATUS OF THOSE CASES, WHETHER THEY HAVE BEEN
DISMISSED, ARCHIVED AND/OR PENDING.

Name: CIRSE CHOY TORRALBA

CRIM. CASE NO. R-43035

FOR: MALICIOUS MISCHIEF

DATE FILED: MAY 10, 1979

COMPLAINANTS: DR. JOVENAL ALMENDRAS

ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY

MR. VICTORIANO VELOSO

ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 17984-R

FOR : ESTAFA

DATE FILED: July 12, 1982

COMPLAINANTS: MR. PIO Y. GO AND

MRS. ROSALITA R. ROLDAN

ADDRESS: c/o 2nd Floor Martinez Bldg.

(ALPHA MKTG., INC.),

Jones Ave., Cebu City

DISPOSITION: PENDING ARREST

CRIM. CASE NO. 14843-R

FOR: SERIOUS PHYSICAL INJURIES

DATED FILED: APRIL 28, 1980

COMPLAINANTS:

ADDRESS:

DISPOSITION: PROVISIONALLY DISMISSED

DATED: APRIL 14, 1991

NOT TOO LONG AGO, I RECEIVED THE FOLLOWING NEWSPAPER CLIPPING COURTESY OF A CEBU CITY
CONCERNED CITIZEN. THE CAPTION STORY BELOW TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN
ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.

[Thereafter followed by a picture of a person with face blotted out being arrested and an inset picture of the
same person with face likewise blotted out, being detained, these pictures being followed by the caption,
which states]:

ESTAFA CASE. Members of Cebu City Police Intelligence group under Lt. Col. Eduardo Ricardo arrested last night a
businessman (extreme left) for his alleged involvement in estafa case filed by APOCEMCO. Left photo a member of the
team serves the warrant of arrest order issued by CEBU RTC Judge German Lee.

ANOTHER CLIPPING WHICH IDENTIFIED BUSINESSMAN CHOY TORRALBA TO HAVE BEEN SERVED A WARRANT
OF ARREST IN A (P)LUSH UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF THE CEBU CITY POLICE. NOW
TELL ME, IS IT YOU THE SAME CHOY TORRALBA REFERRED TO IN THE CAPTION STORY. IF INDEED YOU ARE
THE ONE AND THE SAME WHO APPEARED IN THE PICTURE BELOW, PLEASE TO (sic) INFORM ME.:

[Thereafter followed by another picture, this time, the face of the person being arrested is clearly shown
to be that of Cirse Choy Torralba, followed by this caption.]

SERENE EVENING: The otherwise serene evening enjoyed by businessman Choy Torralba (left) in a plush uptown Hotel
was disturbed by operatives (right) of the Cebu City Police under P/Lt/Col. Eduardo Ricardo just to serve on the former a
warrant of arrest issued by Cebu RTC Judge German Lee relative to the suit filed by Apocemco against the businessman
(PR)
 THANK YOU, AND MY BEST REGARDS.

PAID SPACE BY: (sgd.) SEGUNDO LIM[14]

Asserting inter alia that he had been acquitted and the case/s referred to had already been settled, complainant sought Lim and petitioners conviction for

libel. At the same time, he asked for moral, compensatory and exemplary damages as well as attorneys fees because the publication allegedly placed

him in public contempt and ridicule. It was claimed that the publication was also designed to degrade and malign his person and destroy him as a

broadcast journalist.[15]

Lim, in his defense, claimed that complainant was allegedly making scurrilous attacks against him and his family over the airwaves. Since Lim had no

access to radio time, he opted for paid advertisements via newspaper to answer the attacks, [16] as a measure of self-defense. Lim also argued that

complainant, as a media man and member of the fourth estate, occupied a position almost similar to a public functionary and should not be onion-

skinned and be able to absorb the thrust of public scrutiny.[17]

After trial, the lower court concluded that the publication complained of was indeed libelous. [18] Declaring that malice is the most important

element of libel, it held that the same was present in the case because every defamatory publication prima facie implies malice on the part of the author

and publisher towards the person subject thereof.[19] The lower court gave no credence to Lim and petitioners argument that the publication was resorted

to in self-defense.

The trial court likewise disregarded the insulative effects of complainants status as a mediaman to the prosecution of the criminal libel charge. The

publication of a calumny even against public officers or candidates for public office, according to the trial court, is an offense most dangerous to the

people. It deserves punishment because the latter may be deceived thereby and reject the best and deserving citizens to their great injury.[20] It further

held that a private reputation is as constitutionally protected as the enjoyment of life, liberty and property such that anybody who attacks a persons

reputation by slanderous words or libelous publications is obliged to make full compensation for the damage done. [21]

On appeal, the CA modified the penalty imposed but it affirmed the RTCs finding of guilt. The CA likewise held that self-defense was

unavailing as a justification since the defendant should not go beyond explaining what was previously said of him. The appellate court asserted that the

purpose of self-defense in libel is to repair, minimize or remove the effect of the damage caused to him but it does not license the defendant to utter

blow-for-blow scurrilous language in return for what he received. Once the defendant hits back with equal or more scurrilous remarks unnecessary for

his defense, the retaliation becomes an independent act for which he may be liable. [22] For this reason, the CA refused to sanction the invocation of self-

defense.

Petitioner now comes before this Court praying for the reversal of the judgment against him. Petitioner contends inter alia that as editor-publisher of the

Sunday Post and as a member of the fourth estate, the lower courts finding of guilt against him constitutes an infringement of his constitutional right to

freedom of speech and of the press.[23] Petitioner likewise faults the lower courts failure to appreciate their invocation of self-defense.
For resolution of this Court, therefore, is the fundamental question of whether the publication subject matter of the instant case is indeed libelous. While

the findings and conclusions of the lower courts are rigid in their application of the strict letter of the law, the issue seems more complex than it appears

at first blush. The Court is compelled to delve deeper into the issue considering that libel principles formulated at one time or another have waxed and

waned through the years, in the constant ebb and flow of judicial review. [24] A change in the factual milieu of a case is apt to evoke a change in the

judgment applicable. Viewed in this context, the petition has merit and the judgment appealed from must be reversed.

Criminal Libel vis--vis the

Guarantee of Free Speech

Under our law, criminal libel is defined as a 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.[25] Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of

the person defamed; and, (d) existence of malice.[26]

Originally, the truth of a defamatory imputation was not considered a defense in the prosecution for libel. In the landmark opinion of England's Star

Chamber in the Libelis Famosis case in 1603, two major propositions in the prosecution of defamatory remarks were established: first, that libel against a

public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. [27] These propositions

were due to the fact that the law of defamatory libel was developed under the common law to help government protect itself from criticism and to provide

an outlet for individuals to defend their honor and reputation so they would not resort to taking the law into their own hands.[28]

Our understanding of criminal libel changed in 1735 with the trial and acquittal of John Peter Zenger for seditious libel in the then English colony of New

York. Zenger, the publisher of the New-York Weekly Journal, had been charged with seditious libel, for his papers consistent attacks against Colonel

William Cosby, the Royal Governor of New York. In his defense, Zengers counsel, Andrew Hamilton, argued that the criticisms against Governor Cosby

were the right of every free-born subject to make when the matters so published can be supported with truth. [29] The jury, by acquitting Zenger,

acknowledged albeit unofficially the defense of truth in a libel action. The Zenger case also laid to rest the idea that public officials were immune from

criticism.[30]

The Zenger case is crucial, not only to the evolution of the doctrine of criminal libel, but also to the emergence of the American democratic ideal. It has

been characterized as the first landmark in the tradition of a free press, then a somewhat radical notion that eventually evolved into the First

Amendment[31] in the American Bill of Rights and also proved an essential weapon in the war of words that led into the American War for

Independence.[32]

Yet even in the young American state, the government paid less than ideal fealty to the proposition that Congress shall pass no law abridging the

freedom of speech. The notorious Alien and Sedition Acts of 1798[33] made it a crime for any person who, by writing, speaking or printing, should

threaten an officer of the government with damage to his character, person, or estate. The law was passed at the insistence of President John Adams,

whose Federalist Party had held a majority in Congress, and who had faced persistent criticism from political opponents belonging to the Jeffersonian

Republican Party. As a result, at least twenty-five people, mostly Jeffersonian Republican editors, were arrested under the law. The Acts were never

challenged before the U.S. Supreme Court, but they were not subsequently renewed upon their expiration.[34]
The massive unpopularity of the Alien and Sedition Acts contributed to the electoral defeat of President Adams in 1800. In his stead was elected Thomas

Jefferson, a man who once famously opined, Were it left to me to decide whether we should have a government without newspapers, or newspapers

without a government, I should not hesitate a moment to prefer the latter.[35]

There is an important observation to be made about the quality of the American press during the time of Jefferson, one that is crucial to the

contemporaneous understanding of the freedom of expression clause at the time of its inception. The tenor of the public debate during that era was

hardly polite. About the impending election of Jefferson, the New England Courant predicted that murder, robbery, rape and adultery and incest will be

openly taught and practiced, the air will be rent with cries of distress, the soil soaked with blood and the nation black with crimes.[36] After Jefferson was

elected, rumors spread about his dalliances with his slave, Sally Hemmings, adding more fodder to his critics. The thirteen-year old William Cullen

Bryant, who would grow up to become a prominent poet and abolitionist, published the following doggerel: Thy countrys ruin and thy countrys shame!/

Go wretch! Resign the Presidential chair/Disclose thy secret measures foul and fair/ Go scan, philosophist, thy [Sallys] charms/And sink supinely in her

sable arms.[37]

Any comprehensive history of the American media during the first few decades of the existence of the United States would reveal a similar preference in

the media for such mad-dog rhetoric.[38] These observations are important in light of the misconception that freedom of expression extends only to polite,

temperate, or reasoned expression. The assailed decision of the RTC betrays such a perception, when it opined that the subject advertisement was

libelous because by the language used, it had passed from the bounds of playful gist, and intensive criticism into the region of scurrilous calumniation

and intemperate personalities.[39] Evidently, the First Amendment was designed to protect expression even at its most rambunctious and vitriolic form as

it had prevalently taken during the time the clause was enacted.

Nonetheless, juristic enforcement of the guarantee of freedom of expression was not demonstrably prominent in the United States during most of the

1800s. Notably, the prevalent philosophy then was that the Bill of Rights did not apply to the different federal states.[40] When the US Supreme Court was

confronted with substantial First Amendment issues in the late 1800s and early 1900s, it responded by repeatedly declining to protect free

speech.[41] The subsequent enactment of the due process clause in the Fourteenth Amendment eventually allowed the U.S. Supreme Court to accept,

in Gitlow v. New York[42] that the First Amendment was protected from impairment by the States, thus allowing for a more vigorous enforcement of the

freedom of expression clause in the twentieth century.[43]

The most important American ruling on libel, arguably from which modern libel law emerged[44] was New York Times v. Sullivan,[45] penned by the liberal

lion Justice William Brennan, Jr. In ascertaining whether the New York Times was liable for damages in a libel action, the U.S. Supreme Court had

acknowledged that the writing in question, an advertisement published in the paper [46] extolling the virtues of the civil rights movement, had contained

several factual inaccuracies in describing actions taken by Montgomery, Alabama officials on civil rights protesters.[47]The Court even concluded that at

most, there was a finding against the New York Times of negligence in failing to discover the misstatements against the news stories in the newspapers

own files.[48]

Nonetheless, the U.S. Supreme Court squarely assessed the import of the First Amendment freedoms in the prosecution of criminal libel. Famously, the

precedent was established that a public official may not successfully sue for libel unless the official can prove actual malice, which was defined as with

knowledge that the statement was false or with reckless disregard as to

whether or not it was true.[49] By this standard, it was concluded that factual errors aside, actual malice was not proven to sustain the convictions for libel.

Moreover, leeway was allowed even if the challenged statements were factually erroneous if honestly made. [50]
Shortly after New York Times was promulgated, its principles were extended by the U.S. Supreme Court to criminal libel actions in Garrison v.

Louisiana.[51] The decision, also penned by Justice Brennan, commented on the marked decline in the common resort to criminal libel actions:

Where criticism of public officials is concerned, we see no merit in the argument that criminal libel statutes serve interests distinct
from those secured by civil libel laws, and therefore should not be subject to the same limitations. At common law, truth was no
defense to criminal libel. Although the victim of a true but defamatory publication might not have been unjustly damaged in
reputation by the libel, the speaker was still punishable since the remedy was designed to avert the possibility that the utterance
would provoke an enraged victim to a breach of peace . . .

[However], preference for the civil remedy, which enabled the frustrated victim to trade chivalrous satisfaction for damages, has
substantially eroded the breach of peace justification for criminal libel laws. In fact, in earlier, more violent times, the civil remedy had
virtually pre-empted the field of defamation; except as a weapon against seditious libel, the criminal prosecution fell into virtual
desuetude.[52]

Then, the Court proceeded to consider whether the historical limitation of the defense of truth in criminal libel to utterances published with good motives

and for justifiable ends:[53]

. . . The good motives restriction incorporated in many state constitutions and statutes to reflect Alexander Hamiltons
unsuccessfully urged formula in People v. Croswell, liberalized the common-law rule denying any defense for truth. . . . In any
event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is
overborne by the larger public interest, secured by the Constitution, in the dissemination of truth. . . .

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of
expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate
on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even
if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.
. . .[54]

Lest the impression be laid that criminal libel law was rendered extinct in regards to public officials, the Court made this important qualification

in Garrison:

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest
utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and
deliberately published about a public official, should enjoy a like immunity. At the time the First Amendment was adopted, as
today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an
effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for
political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as
a tool is at once with odds with the premises of democratic government and with the orderly manner in which economic, social, or
political change is to be effected.[55]

Another ruling crucial to the evolution of our understanding was Curtis Publishing Co. v. Butts,[56] which expanded the actual malice test to cover not just

public officials, but also public figures. The U.S. Supreme Court, speaking through Chief Justice Warren, stated that:

[D]ifferentiation between public figures and public officials and adoption of separate standards of proof for each have no
basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors
are blurred. . . . [I]t is plain that although they are not subject to the restraints of the political process, public figures, like public
officials, often play an influential role in ordering society. And surely as a class these public figures have as ready access as public
officials to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry
has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate
about their involvement in public issues and events is as crucial as it is in the case of public officials. The fact that they are not
amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it
means that public opinion may be the only instrument by which society can attempt to influence their conduct. [57]
The public figure concept was later qualified in the case of Gertz v. Welch, Inc.,[58] which held that a private person should be able to recover damages

without meeting the New York Times standard.[59] In doing so, the US Supreme Court recognized the legitimate state interest in compensating private

individuals for wrongful injury to reputation.[60]

The prominent American legal commentator, Cass Sunstein, has summarized the current American trend in libel law as follows:

[C]onsider the law of libel. Here we have an explicit system of free speech tiers. To simplify a complex body of law: In the
highest, most-speech protective tier is libelous speech directed against a public figure. Government can allow libel plaintiffs to recover
damages as a result of such speech if and only if the speaker had actual malicethat is, the speaker must have known that the speech
was false, or he must have been recklessly indifferent to its truth or falsity. This standard means that the speaker is protected against
libel suits unless he knew that he was lying or he was truly foolish to think that he was telling the truth. A person counts as a public
figure (1) if he is a public official in the sense that he works for the government, (2) if, while not employed by government, he otherwise
has pervasive fame or notoriety in the community, or (3) if he has thrust himself into some particular controversy in order to influence
its resolution. Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from recovering against a
magazine that portrays him as having had sex with his mother. Movie stars and famous athletes also qualify as public figures. False
speech directed against public figures is thus protected from libel actions except in quite extreme circumstances.[61]

It may also be noted that this heightened degree of protection afforded to free expression to comment on public figures or matters against criminal

prosecution for libel has also gained a foothold in Europe. Article 10 of the European Convention on Human Rights and Fundamental Freedoms provides

that [e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas

without interference by public authority and regardless of frontiers. [62] The European Court of Human Rights applied this provision in Lingens v.

Austria,[63] in ruling that the Republic of Austria was liable to pay monetary damages as just satisfaction to a journalist who was found guilty for

defamation under the Austrian Criminal Code.[64] The European Court noted:

[Article 10] is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no democratic society. . . . These principles are of particular importance as far as the press
is concerned. Whilst the press must not overstep the bounds set, inter alia, for the protection of the reputation of others, it is
nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not
only does the press have the task of imparting such information and ideas: the public also has the right to receive them. . . .[65]

The international trend in diminishing the scope, if not the viability, of criminal libel prosecutions is clear. Most pertinently, it is also evident in our own

acceptance in this jurisdiction of the principles applied by the U.S. Supreme Court in cases such as New York Times and Garrison.

Particularly, this Court has accepted the proposition that the actual malice standard governs the prosecution of criminal libel cases concerning public

figures. In Adiong v. COMELEC,[66] the Court cited New York Times in noting that [w]e have adopted the principle that debate on public issues should be

uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public

officials.[67] The Court was even more explicit in its affirmation of New York Times in Vasquez v. Court of Appeals.[68]Speaking through Justice Mendoza:

For that matter, even if the defamatory statement is false, no liability can attach if it relates to official conduct, unless the public
official concerned proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. This is the gist of the ruling in the landmark case of New York Times v. Sullivan, which this
Court has cited with approval in several of its own decisions.[ [69]] This is the rule of "actual malice." In this case, the prosecution
 failed to prove not only that the charges made by petitioner were false but also that petitioner made them with knowledge of their
falsity or with reckless disregard of whether they were false or not.[70]

The Court has likewise extended the actual malice rule to apply not only to public officials, but also to public

figures. In Ayer Productions Pty. Ltd. v. Capulong,[71] the Court cited with approval the following definition of a public figure propounded by an American

textbook on torts:

A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling
which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in
other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by
appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list
is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers,
an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived
at a position where public attention is focused upon him as a person. [72]

Ayer did not involve a prosecution for libel, but a complaint for injunction on the filming of a dramatized account of the 1986 EDSA Revolution.

Nonetheless, its definition of a public figure is important to this case, as it clearly establishes that even non-governmental officials are considered public

figures. In fact, the definition propounded in Ayer was expressly applied by the Court in Borjal v. Court of Appeals[73] in ascertaining whether the

complainant therein was a public figure, thus warranting the application of the actual malice test. [74]

We considered the following proposition as settled in this jurisdiction: that in order to justify a conviction for criminal libel against a public

figure, it must be established beyond reasonable doubt that the libelous statements were made or published with actual malice, meaning knowledge that

the statement was false or with reckless disregard as to whether or not it was true. As applied to the present petition, there are two main determinants:

whether complainant is a public figure, and assuming that he is, whether the publication of the subject advertisement was made with actual malice.

Sadly, the RTC and the CA failed to duly consider both propositions.

Complainant Is a Public Figure

There should be little controversy in holding that complainant is a public figure. He is a broadcast journalist hosting two radio programs aired over a large

portion of the Visayas and Mindanao. Measured against the definition provided in Ayer, complainant would definitely qualify as a public figure.

Complainant even asserted before the trial court that his broadcast was listened to widely, hence, his notoriety is unquestionable.

Complainants standing as a public figure is further militated by the contextual circumstances of the case. The newspaper in question, the Sunday Post,

is particularly in circulation in the areas where complainants broadcasts were aired. Certainly, it cannot be denied that the target audience of the

newspaper were the same persons who may have listened regularly to the complainants broadcast. Even if the sphere of complainants renown is limited
in geography, it is in the same plane as the circulation of the offending newspaper. The extent of complainants ability to influence hearts and minds

through his broadcasts need not be established, only that he has such capacity and willingness to exert an influence. Complainants volition to practice

the radio broadcasting profession necessarily thrusts him in the public sphere.

Actual Malice Not Proven

As it has been established that complainant was a public figure, it was incumbent upon the prosecution to prove actual malice on the part of Lim and

petitioner when the latter published the article subject matter of the complaint. Set otherwise, the prosecution must have established beyond reasonable

doubt that the defendants knew the statements in the advertisement was false or nonetheless proceeded with reckless disregard as to publish it whether

or not it was true.

It should thus proceed that if the statements made against the public figure are essentially true, then no conviction for libel can be had. Any statement

that does not contain a provably false factual connotation will receive full constitutional protection. [75] An examination of the records of this case showed

that the prcis of information contained in the questioned publication were actually true. Thus, complainant himself testified:

Q But is it true that these cases published in Exhibit F-1 are actually existing or previous cases?

A At the time of the publication those cases were terminated, long terminated.

Q But is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10, 1979 against you?

FISCAL ROCAMORA:

Your Honor, I believe the witness did not understand the question.

COURT: (to Stenographer)

Read back the question.

Q Is it true that in fact, there was a criminal case No. R-43035 for Malicious Mischief filed May 10, 1979, against you?

A I really do not know about that accusation.

COURT:

Proceed.

ATTY. FLORIDO:
Q When you came across the publication, did you check if in fact there was a case docketed with that number against you? Did
you check?

A I did not.

Q: Now, is it true that there was a criminal case against you for Estafa docketed as criminal case No. 17984-R filed July 21, 1982
where the complaints were Pio Go and Mrs. Rosalita Roldan?
A: Yes.

Q: Is it true that there was also a criminal case filed against you numbered 14843-R for Serious Physical Injuries, date filed April
28, 1980 which in this publication appears provisionally dismissed April 14, 1991?

A: That case, I do not have any idea about it.

Q: Did you inquire from the appropriate Court when you received a copy of this to find out if it is true that these cases were filed
against you?

A: As far as I know, in fact, I never received any subpoena or anything about this case.

Q: Yes, but did you upon receipt of Exhibit F-1, did you inquire from the Court whether it is true that these cases had been
recorded as filed against you?

A: Well, as far as I know like the Estafa case, I was already long been acquitted in that case.

Q: You did not answer the question. Will you please answer.

COURT: (to witness)

Q: The question is, did you inquire from the Court concerned whether that case exist?

A: Yes.

COURT:

Proceed.

ATTY. FLORIDO:

Q: And you discovered that they were true that this was provisionally dismissed with reference to 14843-R for Serious Physical
Injuries. You made inquiries?

A: Yes.

Q: And you also know that Dr. Jovenal Almendras your godfather in the wedding had also filed a case of Malicious Mischief
against you?

A: I know but that was in the past.

Q: Yes, I know that that was in the past, but that is true?

A: Yes.
Q: So, there is nothing false so far as Exhibit F-1?

A: There is no question about that but that is malicious.

Q: Let me see. On the lefthand side of the bottom it says. Not too long ago, I received the following newspaper clippings courtesy
of the Cebu City concerned citizens. The caption story below tells all. If you know who the businessman alluded to in the
caption. Please do tells me and then, there is a photograph a reprint from Sun Star publication. Do you confirm that? [76]

xxx

Q: But is it true that you were arrested per this photograph and I quote. In a plush uptown hotel was disturbed by operatives (right)
of the Cebu City Police under Police Lieutenant Col. Eduardo Ricardo just to serve on the former a warrant of arrest
issued by the Cebu RTC Judge German Lee relative to the suit filed by Apocemco against a businessman. Is it true that
you were arrested?
A: Yes.

Q: So this photograph is genuine photograph?

A: Yes.

Q: And you claimed that you have a good reputation and that good reputation had been soiled by the accused in this case. Let me
ask you concerning your reputation then. Is it not a fact that aside from this record of criminal cases appearing in Exhibit
F-1, you have also been at one time or another been accused of several other criminal cases both in and out of the City
of Cebu?

A: Yes, before, 10 years, 15 years ago.

Q: And in the Municipal Trial Court in Cities alone in Cebu City, you have the following per certificate which we marked as Exhibit
2. Criminal Case Nos. 14843-R for Serious Physical Injuries, Torralba Cirse Choy; 17984-R, for Estafa; Torralba Cirse R.
R-43035 for Malicious Mischief. You will confirm that the same Cirse Torralba and/or Choy Torralba and/or Cirse R.
Torralba mentioned in this certificate refer to your person?

A: Yes.

Q: Now, aside from these criminal cases in the Municipal Trial Courts in Cities, in Cebu City, you also have 1, 2, 3, 4, 5, 6, 7, 8, 9
criminal cases before the Regional Trial Court of Cebu per certificate that I marked as Exhibit 3. Is that correct?

A: Yes, but all those cases have already been either acquitted or dismissed. I will present the certification.

Q: Specifically, these cases has something to do with your character. Let me count 1, 2, 3, 4, 5 cases for Estafa, the 6 th case for
issuance of a bouncing check, the 7th case is a case for issuance of a bouncing check; and the 9 th is also for issuance of
a bouncing check. You will confirm that?

....

COURT: (to witness)

Q: What happened to those cases?

A: I was acquitted your Honor. I was acquitted in all those cases, some are dismissed, and fortunately, your Honor, I do not have
any conviction.[77]
 From the foregoing, it is clear that there was nothing untruthful about what was published in the Sunday Post. The criminal cases listed in the

advertisement as pending against the complainant had indeed been filed. It may have been inconvenient for the complainant that these matters may

have been divulged, yet such information hardly falls within any realm of privacy complainant could invoke, since the pendency of these criminal charges

are actually matters of public record.

The information, moreover, went into the very character and integrity of complainant to which his listening public has a very legitimate

interest. Complainant hosts a public affairs program, one which he himself claimed was imbued with public character since it deals with corruptions in

government, corruptions by public officials, irregularities in government in comrades. [78] By entering into this line of work, complainant in effect gave the

public a legitimate interest in his life. He likewise gave them a stake in finding out if he himself had the integrity and character to have the right to criticize

others for their conduct.

In convicting the defendants, the lower courts paid particular heed to Article 354 of the Revised Penal Code, which provides that 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. We hold that this

provision, as applied to public figures complaining of criminal libel, must be construed in light of the constitutional guarantee of free expression, and this

Courts precedents upholding the standard of actual malice with the necessary implication that a statement regarding a public figure if true is not libelous.

The provision itself allows for such leeway, accepting as a defense good intention and justifiable motive. The exercise of free expression, and its

concordant assurance of commentary on public affairs and public figures, certainly qualify as justifiable motive, if not good intention.

It cannot be helped if the commentary protected by the Bill of Rights is accompanied by excessive color or innuendo. Certainly, persons in

possession of truthful facts are not obliged to present the same in bland fashion. These true facts may be utilized to convince the listener/reader against

a particular position, or to even dissuade one against accepting the credibility of a public figure. Dry facts, by themselves, are hardly stirring. It is the

commentary thereupon that usually animates the discourse which is encouraged by the Constitution as integral to the democratic way of life. This is

replete in many components of our daily life, such as political addresses, televised debates, and even commercial advertisements.

As adverted earlier, the guarantee of free speech was enacted to protect not only polite speech, but even expression in its most

unsophisticated form. Criminal libel stands as a necessary qualification to any absolutist interpretation of the free speech clause, if only because it

prevents the proliferation of untruths which if unrefuted,

would gain an undue influence in the public discourse. But in order to safeguard against fears that the public debate might be muted due to the reckless

enforcement of libel laws, truth has been sanctioned as a defense, much more in the case when the statements in question address public issues or

involve public figures.

In ascertaining the degree of falsity that would constitute actual malice, the Court, citing New York Times, has even gone so far as

acknowledging:

Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove
actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith
and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the
choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. In Bulletin Publishing
Corp. v. Noel we held
 A newspaper especially one national in reach and coverage, should be free to report on events and
developments in which the public has a legitimate interest with minimum fear of being hauled to court by one
group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the
standards of morality and civility prevailing within the general community.

To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing
liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same
reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed
in the absence of proof of "actual malice" on the part of the person making the libelous statement. [79]

To this end, the publication of the subject advertisement by petitioner and Lim cannot be deemed by this Court to have been done with actual

malice. Aside from the fact that the information contained in said publication was true, the intention to let the public know the character of their radio

commentator can at best be subsumed under the mantle of having been done with good motives and for justifiable ends. The advertisement in question

falls squarely within the bounds of constitutionally protected expression under Section 4, Article III, and thus, acquittal is mandated.

WHEREFORE, premises considered, the petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals dated 29 July

1996 and 3 October 1996, respectively, in CA-G.R. CR No. 16413 are REVERSED and SET ASIDE insofar as they affect petitioner. The Decision of the

Regional Trial Court of Cebu City, promulgated on 17 May 1994, as regards petitioner is likewise REVERSED and SET ASIDE and petitioner is

ACQUITTED of the charge of libel therein. No costs.

SO ORDERED.

G.R. No. 146848 October 17, 2006

GMA NETWORK, INC. (formerly known as "REPUBLIC BROADCASTING SYSTEM, INC.") and REY VIDAL, petitioners,
vs.
JESUS G. BUSTOS, M.D., TEODORA R. OCAMPO, M.D., VICTOR V. BUENCAMINO, M.D., CESAR F. VILLAFUERTE, M.D., ARTEMIO T.
ORDINARIO, M.D., and VIRGILIO C. BASILIO, M.D., respondents.

DECISION

GARCIA, J.:

Assailed and sought to be set aside in this petition for review1 under Rule 45 of the Rules of Court is the decision2dated January 25, 2001 of the Court of
Appeals (CA) in CA-G.R. CV No. 52240 which reversed and set aside an earlier decision3 of the Regional Trial Court (RTC) of Makati City, Branch 64, in
Civil Case No. 88-1952, an action for damages thereat commenced by the herein respondents Jesus G. Bustos, Teodora R. Ocampo, Victor V.
Buencamino, Cesar F. Villafuerte, Artemio T. Ordinario and Virgilio C. Basilio, all physicians by profession and the former chairman and members,
respectively, of the Board of Medicine, against the herein petitioners GMA Network, Inc. (formerly Republic Broadcasting System, Inc.) and Rey Vidal.

The facts:

In August 1987, the Board of Medicine of the Professional Regulation Commission (PRC) conducted the physicians’ licensure examinations. Out of the
total two thousand eight hundred thirty-five (2,835) examinees who took the examinations, nine hundred forty-one (941) failed.

On February 10, 1988, a certain Abello and over two hundred other unsuccessful examinees filed a Petition for Mandamus before the RTC of Manila to
compel the PRC and the board of medical examiners to re-check and reevaluate the test papers. As alleged, mistakes in the counting of the total scores
and erroneous checking of answers to test questions vitiated the results of the examinations.

As news writer and reporter of petitioner GMA Network, Inc. assigned to gather news from courts, among other beats, its co-petitioner Rey Vidal covered
the filing of the mandamus petition. After securing a copy of the petition, Vidal composed and narrated the news coverage for the ten o’clock evening
news edition of GMA’s Channel 7 Headline News.

The text of the news report,4 as drafted and narrated by Vidal and which GMA Network, Inc. aired and televised on February 10, 1988, runs:
 Some 227 examinees in the last August Physician Licensure Examinations today asked the Manila [RTC] to compel the [PRC] and the
Medical Board of Examiners to recheck the August 1987 test papers. The petitioners [examinees] today went to the Presiding Judge to also
ask for a special raffling of the case considering that the next physicians examinations have been scheduled for February [1988] …. They said
that the gross, massive, haphazard, whimsical and capricious checking that must have been going on for years should now be stopped once
and for all.

The last examination was conducted last August … at the PRC central offices, the Far Eastern University and the Araullo High School, the
exams on multiple choice or matching type involve 12 subjects including general medicine, biochemistry, surgery and obstetrics and
gynecology.

21 schools participated in the examination represented by some 2,835 medical student graduates, 1,894 passed and 141 failed.

The results of the exams were released December 9 and were published the following day in metropolitan papers last years (sic).

A group of failing examinees enlisted the help of the Offices of the President and the Vice President and as a result were allowed by PRC …
to obtain the official set of test questions. The students then researched … and produced the key answers to the key questions.

The petitioners were also allowed to see their own test papers, most of them copying the papers ….

With these copies, they were able to match the scores and the correct answers in the examinations. They found that the errors in checking
were so material that they actually lowered the scores that formed the individual ratings of the examinees in the various subjects.

Examples of the discrepancies are to be found in identical answers being rated as incorrect in one examinee’s paper but correct in another.
There is also the case of two different answers being rated as correct. There are indications of wrong counting of total scores per subject so
that the totals are either short by two up to four points.

Finally, there are raw scores that have been transmuted incorrectly so that a passing score was rendered a failure. The petitioners said that
the haphazard and whimsical and capricious checking should now be stopped once and for all. They said that the nine years formal studies
and the one year internship not to mention the expenses and the blood, sweat, and tears of the students and their families will have been
rendered nugatory. The petitioners also noted that Com. Francia had promised last January 12 to rectify the errors in the checking and yet
they have not received the appropriate action promised whereas the next exams have been set for Feb. 20, 21, 27 and 28. (Words in bracket
added.)

Stung by what they claim to be a false, malicious and one-sided report filed and narrated by a remorseless reporter, the herein respondents instituted on
September 21, 1988 with the RTC of Makati City a damage suit against Vidal and GMA Network, Inc., then known as the Republic Broadcasting System,
Inc. In their complaint,5 docketed as Civil Case No. 88-1952 and raffled to Branch 64 of the court, the respondents, as plaintiffs a quo, alleged, among
other things, that then defendants Vidal and GMA Network, Inc., in reckless disregard for the truth, defamed them by word of mouth and simultaneous
visual presentation on GMA Network, Inc.’s Channel 7. They added that, as a measure to make a forceful impact on their audience, the defendants
made use of an unrelated and old footage (showing physicians wearing black armbands) to make it appear that other doctors were supporting and
sympathizing with the complaining unsuccessful examinees. According to the plaintiffs, the video footage in question actually related to a 1982
demonstration staged by doctors and personnel of the Philippine General Hospital (PGH) regarding wage and economic dispute with hospital
management.

In their answer with counterclaim, the defendants denied any wrongdoing, maintaining that their February 10, 1988 late evening telecast on the filing of
the mandamus petition was contextually a concise and objective narration of a matter of public concern. They also alleged that the press freedom
guarantee covered the telecast in question, undertaken as it was to inform, without malice, the viewing public on the conduct of public officials. And vis-
à-vis the particular allegation on the film footages of the PGH demonstration, defendants tagged such footages as "neutral." Pressing the point,
defendants hastened to add that the footages were accompanied, when shown, by an appropriate voiceover, thus negating the idea conjured by the
plaintiffs to create an effect beyond an obligation to report.

In the course of trial, the plaintiffs presented testimonial evidence to prove their allegations about the Vidal report having exposed them, as
professionals, to hatred, contempt and ridicule. And in a bid to establish malice and bad faith on the part of the defendants, the plaintiffs adduced
evidence tending to show that the former exerted no effort toward presenting their (plaintiffs’) side in subsequent telecasts.

In a decision6 dated October 17, 1995, the trial court found for the herein petitioners, as defendants a quo, on the postulate that the Vidal telecast report
in question is privileged. Dispositively, the decision reads:

WHEREFORE, in view of the foregoing considerations, plaintiffs’ complaint for damages against defendants Republic Broadcasting System
Incorporated and Rey Vidal is hereby DISMISSED.

The defendants’ counterclaim for damages is likewise dismissed.

SO ORDERED.

Following the denial of their motion for reconsideration,7 herein respondents went on appeal to the CA in CA-G.R. CV No. 52240. As stated at the
threshold hereof, the appellate court, in its decision8 of January 25, 2001, reversed and set aside that of the trial court, to wit:

WHEREFORE, the Decision dated October 17, 1995 is hereby REVERSED and SET ASIDE and [petitioners] are hereby ordered to pay,
in solidum, the following:

a) the amount of P100,000.00 for each of the [respondents] as moral damages;

b) the amount of P100,000.00 for each of the [respondents] as exemplary damages;

c) the amount of P20,000.00 as attorney’s fee;

d) and cost of suit.

SO ORDERED. (Words in brackets added.)

Hence, petitioners’ present recourse, submitting for the Court’s consideration the following questions:
 A.

WHETHER OR NOT THE CA, AFTER DECLARING THE NEWS TELECAST OF FEBRUARY 10, 1988 AS QUALIFIEDLY PRIVILEGED
COMMUNICATION, COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN INJECTING ACTUAL MALICE TO THE
NEWS TELECAST OF FEBRUARY 10, 1988 JUST SO THAT RESPONDENT BOARD OF MEDICINE COULD RECOVER MORAL AND
EXEMPLARY DAMAGES.

B.

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN COMPLETELY REJECTING
PETITIONERS’ EVIDENCE THAT THE CHARACTER GENERATED WORDS ‘FILE VIDEO’ WERE INDICATED ON SCREEN TO IDENTIFY
THE SHOWING OF THE OLD FILM FOOTAGE IN THE NEWS TELECAST OF FEBRUARY 10, 1988.

C.

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR … IN IMPUTING MALICE UPON PETITIONERS FOR NOT
PRESENTING A TAPE COPY OF THE NEWS TELECAST OF FEBRUARY 10, 1988 ON THE GRATUITOUS DECLARATION THAT A TAPE
COPY COULD BE EASILY SECURED FROM THE NATIONAL TELECOMMUNICATIONS COMMISSION (NTC) WHICH ALLEGEDLY
KEEPS FILE COPIES OF ALL SHOWS FOR A CERTAIN PERIOD OF TIME.

D.

WHETHER OR NOT RESPONDENT BOARD OF MEDICINE CHAIRMAN AND MEMBERS THEREOF, WHO NEVER QUESTIONED THE
COURT OF APPEALS’ DECISION DATED JANUARY 25, 2001 IN A SEPARATE AND INDEPENDENT PETITION BEFORE THE
HONORABLE COURT, CAN ASK FOR AN INCREASED AWARD IN DAMAGES FROM THE HONORABLE COURT UNDER THEIR
COMMENT DATED 7 MAY 2001.

Summed up, the issues tendered in this petition boil down to the following: (1) whether or not the televised news report in question on the filing of the
petition for mandamus against the respondents is libelous; and (2) whether or not the insertion of the old film footage depicting the doctors and
personnel of PGH in their 1982 demonstrations constitutes malice to warrant the award of damages to the respondents.

It bears to stress, at the outset, that the trial court found the disputed news report not actionable under the law on libel, hence no damages may be
recovered. Wrote that court:

This Court finds the telecast of February 10, 1988 aired over Channel 7 by [petitioner] Rey Vidal as a straight news report of the acts and
conduct of the members of the Medical Board of Examiners who are public officers, devoid of comment or remarks, and thus privileged, and
recognized under the 1987 Constitution.

A comparative examination of the telecast of the disputed news report with the Petition for Mandamus entitled Abello, et al., vs. Professional
Regulation Commission … filed before the [RTC] by the medical examinees reveals that the disputed news report is but a narration of the
allegations contained in and circumstances attending the filing of the said Petition for Mandamus. In the case of Cuenco vs. Cuenco, G.R. No.
L-29560, March 31, 1976 …, [it was] … held that the correct rule is that a fair and true report of a complaint filed in Court without remarks nor
comments even before an answer is filed or a decision promulgated should be covered by the privilege. xxx. This Court adopts the ruling
[in Cuenco] to support its finding of fact that the disputed news report consists merely of a summary of the allegations in the said Petition for
Mandamus, filed by the medical examinees, thus the same falls within the protected ambit of privileged communication.

xxx xxx xxx

Thus, [petitioners], in consideration of the foregoing observations … cannot be held liable for damages claimed by [respondents] for simply
bringing to fore information on subjects of public concern.9 (Words in brackets supplied.)

The CA, too, regarded the text of the news telecast as not libelous and as a qualifiedly privileged communication, "[it having been] merely lifted or
quoted from the contents and allegations in the said petition [for mandamus]."10 But unlike the trial court, the CA saw fit to award damages to the
respondents, it being its posture that the insertion to the news telecast of the unrelated 1982 PGH picket film footage is evidence of malice. Without quite
saying so, the CA viewed the footage insertion as giving a televised news report otherwise privileged a libelous dimension. In the precise words of the
appellate court:

While it is the duty of the media to report to the public matters of public concern and interest, the report should be a fair, accurate and true
report of the proceedings. The subject telecast failed in this aspect. The insertion of the film footage showing the doctors’ demonstration
at the PGH several times during the news report on the petition filed by the board flunkers undoubtedly created an impression that
the said demonstration was related to the filing of the case by the board flunkers. The insertion of the film footage without the words
‘file video’, and which had no connection whatsoever to the petition, was done with the knowledge of the [petitioners], thus, in
wanton and reckless disregard of their duty to the public to render a fair, accurate and true report of the same.

xxx xxx xxx

The findings of malice on the part of the [petitioners] should not be construed as a censure to the freedom of the press since their right to
render a news on matters of public concern was not the issue but rather the misrepresentation made when they inserted a film footage of the
doctors’ demonstration which created a wrong impression of the real situation. Unquestionably, the news reporting, interview and the showing
of [the flunkers] filing the case were fair reporting. At this point, that would have been sufficient to inform the public of what really happened.
However, for reasons only known to [petitioners], they inserted the questioned film footage which had no relation to the news being
reported. There is no other conclusion that there was motive to create an impression that the issue also affected the doctors which
forced them to demonstrate. xxx. (Words in brackets supplied).

With the view we take of this case, given the parallel unchallenged determination of the two courts below that what petitioner Vidal reported was
privileged, the award of damages is untenable as it is paradoxical.

An award of damages under the premises presupposes the commission of an act amounting to defamatory imputation or libel, which, in turn,
presupposes malice. Libel is the public and malicious imputation to another of a discreditable act or condition tending to cause the dishonor, discredit, or
contempt of a natural or juridical person.11Liability for libel attaches present the following elements: (a) an allegation or imputation of a discreditable act
or condition concerning another; (b) publication of the imputation; (c) identity of the person defamed; and (d) existence of malice.12
Malice or ill-will in libel must either be proven (malice in fact) or may be taken for granted in view of the grossness of the imputation (malice in
law). Malice, as we wrote in Brillante v. Court of Appeals,13 is a term used to indicate the fact that the offender is prompted by personal ill-will or spite
and speaks not in response to duty, but merely to injure the reputation of the person defamed. Malice implies an intention to do ulterior and unjustifiable
harm. It is present when it is shown that the author of the libelous or defamatory remarks made the same with knowledge that it was false or with
reckless disregard as to the truth or falsity thereof.

In the instant case, there can be no quibbling that what petitioner corporation aired in its Channel 7 in the February 10, 1988 late evening newscast was
basically a narration of the contents of the aforementioned petition for mandamus. This is borne by the records of the case and was likewise the finding
of the trial court. And the narration had for its subject nothing more than the purported mistakes in paper checking and the errors in the counting and
tallying of the scores in the August 1987 physicians’ licensure examinations attributable to the then chairman and members of the Board of Medicine.

Conceding hypothetically that some failing specifically against the respondents had been ascribed in that news telecast, it bears to stress that not all
imputations of some discreditable act or omission, if there be any, are considered malicious thus supplying the ground for actionable libel. For, although
every defamatory imputation is presumed to be malicious, the presumption does not exist in matters considered privileged. In fine, the privilege destroys
the presumption.

Privileged matters may be absolute or qualified.14 Absolutely privileged matters are not actionable regardless of the existence of malice in fact. In
absolutely privileged communications, the mala or bona fides of the author is of no moment as the occasion provides an absolute bar to the action.
Examples of these are speeches or debates made by Congressmen or Senators in the Congress or in any of its committees. On the other hand, in
qualifiedly or conditionally privileged communications, the freedom from liability for an otherwise defamatory utterance is conditioned on the absence of
express malice or malice in fact. The second kind of privilege, in fine, renders the writer or author susceptible to a suit or finding of libel provided the
prosecution established the presence of bad faith or malice in fact. To this genre belongs "private communications" and "fair and true report without any
comments or remarks" falling under and described as exceptions in Article 354 of the Revised Penal Code.15

To be sure, the enumeration under the aforecited Article 354 is not an exclusive list of conditional privilege communications as the constitutional
guarantee of freedom of the speech and of the press has expanded the privilege to include fair commentaries on matters of public interest.16 .

In the case at bench, the news telecast in question clearly falls under the second kind of privileged matter, the same being the product of a simple
narration of the allegations set forth in the mandamus petition of examinees Abello, et al., devoid of any comment or remark. Both the CA and the trial
court in fact found the narration to be without accompanying distortive or defamatory comments or remarks. What at bottom petitioners Vidal and GMA
Network, Inc., then did was simply to inform the public of the mandamus petition filed against the respondent doctors who were admittedly the then
chairman and members of the Board of Medicine. It was clearly within petitioner Vidal’s job as news writer and reporter assigned to cover government
institutions to keep the public abreast of recent developments therein. It must be reiterated that the courts a quo had determined the news report in
question to be qualifiedly privileged communication protected under the 1987 Constitution.

This brings us to the more important question of whether or not the complaining respondents, in their effort to remove the protection accorded by the
privilege, succeeded in establishing ill-will and malice on the part of the petitioners in their televised presentation of the news report in dispute, thus
committing libel.

The CA, adopting the respondents’ line on the matter of malice, resolved the question in the affirmative. As the CA noted, the insertion of an old film
footage showing doctors wearing black armbands and demonstrating at the PGH, without the accompanying character-generated words "file video,"
created the impression that other doctors were supporting and sympathizing with the unsuccessful examinees.

The Court disagrees.

Contrary to the CA’s findings, the identifying character-generated words "file video" appeared to have been superimposed on screen, doubtless to
disabuse the minds of televiewers of the idea that a particular footage is current. In the words of the trial court, the phrase "file video" was "indicated on
screen purposely to prevent misrepresentation so as not to confuse the viewing public."17 The trial court added the observation that "the use of file
footage in TV news reporting is a standard practice."18 At any rate, the absence of the accompanying character-generated words "file video" would not
change the legal situation insofar as the privileged nature of the audio-video publication complained of is concerned. For, with the view we take of the
state of things, the video footage was not libel in disguise; standing without accompanying sounds or voices, it was meaningless, or, at least, conveyed
nothing derogatory in nature.

And lest it be overlooked, personal hurt or embarrassment or offense, even if real, is not automatically equivalent to defamation. The law against
defamation protects one’s interest in acquiring, retaining and enjoying a reputation "as good as one’s character and conduct warrant" in the
community.19 Clearly then, it is the community, not personal standards, which shall be taken into account in evaluating any allegations of libel and any
claims for damages on account thereof.

So it is that in Bulletin Publishing Corp. v. Noel,20 we held:

The term "community" may of course be drawn as narrowly or as broadly as the user of the term and his purposes may require. The reason
why for purposes of the law on libel the more general meaning of community must be adopted in the ascertainment of relevant standards, is
rooted deep in our constitutional law. That reason relates to the fundamental public interest in the protection and promotion of free speech and
expression, an interest shared by all members of the body politic and territorial community. A newspaper … should be free to report on events
and developments in which the public has a legitimate interest, wherever they may take place within the nation and as well in the outside
world, with minimum fear of being hauled to court by one group or another (however defined in scope) on criminal or civil charges for libel, so
long as the newspaper respects and keep within the general community. Any other rule on defamation, in a national community like ours with
many, diverse cultural, social, religious an other groupings, is likely to produce an unwholesome "chilling effect" upon the constitutionally
protected operations of the press and other instruments of information and education.

It cannot be over-emphasized furthermore that the showing of the 1982 film footage, assuming for argument that it contained demeaning features, was
actually accompanied or simultaneously voiced over by the narration of the news report lifted from the filing of the mandamus petition. As aptly put by
the petitioners without controversion from the respondents, there was nothing in the news report to indicate an intent to utilize such old footages to
create another news story beyond what was reported. 21

To be sure, actual malice, as a concept in libel, cannot plausibly be deduced from the fact of petitioners having dubbed in their February 10, 1988
telecast an old unrelated video footage. As it were, nothing in the said footage, be it taken in isolation or in relation to the narrated Vidal report, can be
viewed as reputation impeaching; it did not contain an attack, let alone a false one, on the honesty, character or integrity or like personal qualities of any
of the respondents, who were not even named or specifically identified in the telecast. It has been said that if the matter is not per se libelous, malice
cannot be inferred from the mere fact of publication.22 And as records tend to indicate, the petitioners, particularly Vidal, do not personally know or had
dealings with any of the respondents. The Court thus perceives no reason or motive on the part of either petitioner for malice. The respondents too had
failed to substantiate by preponderant evidence that petitioners were animated by a desire to inflict them unjustifiable harm or at least to place them in a
discomforting light.

Surely, the petitioners’ failure, perhaps even their indisposition, to obtain and telecast the respondents’ side is not an indicia of malice. Even the CA, by
remaining mum on this point, agrees with this proposition and with the petitioners’ proffered defense on the matter. As petitioner Vidal said while on the
witness box, his business as a reporter is to report what the public has the right to know, not to comment on news and events, obviously taking a cue
from the pronouncement of the US Fifth Circuit Court of Appeals in New York Times Co. v. Connor23 that "a reporter … may rely on statements made by
a single source even though they reflect only one side of the story without fear of libel prosecution by a public official."

What is more, none of the herein respondents ever made a claim or pretence that he or all of them collectively was or were among the demonstrating
PGH doctors in the 1982 video footage. It thus puzzles the mind how they could claim to have been besmirched by the use of the same video in the
subject news telecast.

Given the foregoing considerations, the propriety of the award by the CA of moral and exemplary damages need not detain us long. Suffice it to state
that moral damages may be recovered only if the existence of the factual and legal bases for the claim and their causal connection to the acts
complained of are satisfactorily proven.24 Sadly, the required quantum of proof is miserably wanting in this case. This is as it should be. For, moral
damages, albeit incapable of pecuniary estimation, are designed not to impose a penalty but to compensate one for injury sustained and actual
damages suffered.25 Exemplary damages, on the other hand, may only be awarded if the claimants, respondents in this case, were able to establish
their right to moral, temperate, liquidated or compensatory damages.26 Not being entitled to moral damages, neither may the respondents lay claim for
exemplary damages.

In all, the Court holds and so rules that the subject news report was clearly a fair and true report, a simple narration of the allegations contained in and
circumstances surrounding the filing by the unsuccessful examinees of the petition for mandamus before the court, and made without malice. Thus, we
find the petitioners entitled to the protection and immunity of the rule on privileged matters under Article 354 (2) of the Revised Penal Code. It follows
that they too cannot be held liable for damages sought by the respondents, who, during the period material, were holding public office.

We close this ponencia with the following oft-quoted excerpts from an old but still very much applicable holding of the Court on how public men should
deport themselves in the face of criticism:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on
the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in
public life may suffer under a hostile and unjust accusation; the wound can be assuaged by the balm of clear conscience. A public officer must
not be too thin-skinned with reference to comment upon his officials acts. Only thus can the intelligence and dignity of the individual be
exalted. xxx.27

IN VIEW WHEREOF, the petition is GRANTED. Accordingly, the assailed decision dated January 25, 2001 of the appellate court in CA-G.R. CV No.
52240 is REVERSED and SET ASIDE and that of the trial court is REINSTATEDand AFFIRMED in toto.

No pronouncement as to costs.

SO ORDERED.

REVERSION TO PRE-SULLIVAN

OGIE DIAZ, G.R. No. 159787

Petitioner,
Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
*
- versus - CORONA,
AZCUNA, and
GARCIA, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent.
May 25, 2007
x --------------------------------------------------------------------------------x

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari assailing the Decision[1] of the Court of Appeals (Eleventh Division) dated

March 15, 2002, in CA-G.R. CR No. 22545.

On October 16, 1992, the Office of the City Prosecutor of Manila filed with the Regional Trial Court, Branch 2, Manila an Information for libel against

Manny Pichel and Ogie Diaz (Ogie Frias in real life), petitioner. The Information, docketed as Criminal Case No. 92-1113377, reads:
That on or about December 28, 1991, in the City of Manila, Philippines, the said accused being then the Managing Editor and
writer, respectively of Bandera, a newspaper of general circulation, conspiring and confederating together and mutually helping
each other, with the malicious purpose of impeaching the integrity, honor and reputation of one FLORINDA BAGAY, and with the
evident intent of exposing her to public interest, hatred, contempt, and ridicule, did then and there willfully, unlawfully, and
feloniously write and publish, or cause to be written and published in the movie section of said newspaper an article which reads in
part as follows:
Ilang beses na nakaladkad ang pangalan ng isang Miss S sa buhay ni Philip Henson ang lalaking mahilig
makipagsex sa asawa. Nasulat na sa ibang tabloid na limang beses diumanong ginalaw ni Philip ang babaing
kine-claim na nabuntis ako ni Philip.
Dahil sa pahayag na yon ay nagpaliwanang at nagbigay pa ng detalye si Philip. Nagpa-interbyu siya sa ilang
piling reporters.
At muli, babanggitin lang namin ang kanyang mga pahayag tungkol sa pagkakasangkot niya sa buhay ni Miss
S.
Inamin ni Philip na limang beses niyang ginalaw si Miss S. Pero hindi ko pinasok ang akin sa ano niya dahil siya
rin ang may ayaw.
Ang sabi niya kasi sa akin, isa siyang malinis na babae at hindi siya basta-basta nagpapaganuon. So ang
ginawa namin, ipit method.
 Yung ipitin niya iyong akin sa dalawa niyang hita kunwari sa ano niya nakapasok habang nagpa-pump ako.
Siya pa nga ang nagturo sa akin ng ibat ibang posisyon, e yung helicopter at saka ang galing niyang bumlow
job. Sanay na sanay siya.
Kahit itanong nyo pa kay Ray Ravelo. Nagalaw din siya ni Rey, pahayag ni Philip at kami mismo ang nakarining
ng mga linyang iyon sa isa naming pag-uusap sa Jaloux Disco.
In which words and phrases, which were used by many people, the said accused meant and intended to convey as in fact, they
meant and conveyed false and malicious imputations that the said Florinda Bagay is a sexual pervert and possesses lascivious
and immoral habits, the accused well knowing that said imputations are devoid of truth and without foundation in fact whatsoever,
highly libelous and offensive to the good name, character, and reputation of the said Florinda Bagay.
Contrary to law.

Upon being arraigned on June 8, 1993, petitioner Ogie Diaz and his co-accused Pichel, assisted by counsel, pleaded not guilty. After the pre-trial, the

case was heard on the merits.

Florinda Bagay, complaining witness, testified that she is a graduate of medical secretarial course. She tried her luck in the movies under the guidance

of her godmother, Mila Parawan, a writer covering the entertainment industry. Florinda adopted and used Patricia Santillan as her screen name.

During her brief stint in the movies, she met Philip Henson, an aspiring bit player. A whirlwind romance between them followed and on June 16, 1988,

they started living together. On March 9, 1991, she gave birth to a girl she named Maria Briana Bagay. By that time, her relationship with Philip Henson

ended.

Florinda claimed she was the Miss S alluded to in petitioners column Pakurot considering that her screen name is Patricia Santillan.

One Nonette Lim called her attention to the article and she felt embarrassed. Mila Parawan showed her the item. Her family and neighbors also read

it. As a result, she was forced to stop her studies as a medical technology student at the United Doctors Medical Center.

Florinda further testified that at the time the article came out, she and Philip were no longer living together.

Mila Parawan also took the witness stand and corroborated Florindas testimony. She further testified that after Philip and Florinda parted ways, her

former press relations officer, who used the nom de plume Isko Peta, wrote an item entitled Ibinulgar namin ang babaeng inanakan ni Philip

Henson which appeared in the December 2, 1991 issue of ArtistaMagazine. Philip believed that Florinda released their story to the press. He then

caused the publication of the libelous article against her.

Mila Parawan added that Florinda came from a well respected family in their community. Thus, she could not have done the acts being

imputed to her.

On cross-examination, Mila Parawan stated she was certain the Miss S referred to in the article is Florinda because petitioner and Pichel, her

good friends, told her that Miss S is her alaga (ward).

Pichel testified that he had been a journalist covering show business for the past 21 years. He denied having met or known the complaining

witness. He also denied being the editor of Bandera. He was only its lay-out artist, a part time job.

Petitioner Ogie Diaz admitted that while he wrote the column Pakurot where the alleged libelous statements appeared, however, he did not

know the complaining witness or Miss S. The source of his article was Philip Henson.

The defense also presented as witness two movie journalists Ernie Pecho and Mario Bautista. Both had more than 50 years covering the

entertainment industry.

Pecho testified that he has never heard the screen name Patricia Santillan; that reading the article in question would not give the reader any

idea that Miss S is Patricia Santillan; and that in the movie world, the letter S refers to shabu, not to a person.

Bautista, for his part, stated that he has never heard of any actress or starlet named Patricia Santillan. After reading the article, it never came

to his mind that Miss S is one Patricia Santillan.

Douglas Quijano, a long-time line producer and talent manager, testified that in his many years of managing movie and TV stars, he could not

recall an actress named Miss S. He has never heard of Patricia Santillan.

 On May 12, 1998, the trial court rendered its judgment convicting petitioner and Pichel of the crime charged. The dispositive portion reads:

WHEREFORE, in view of the above discussion and findings, the Court finds both accused Manny Pichel and Ogie Diaz
guilty beyond reasonable doubt of the crime of libel, defined in Article 353 and penalized under Article 355 of the Revised Penal
Code, as amended, and hereby sentences each of them to suffer an indeterminate penalty of SIX (6) MONTHS AND ONE (1) DAY
as minimum to FOUR (4) YEARS AND TWO (2) MONTHS of prision correcional in its Minimum and Medium Periods, as maximum
and to pay a fine of P3,000.00 each.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision, sustained the conviction of petitioner but acquitted Pichel.

Petitioner timely filed a motion for reconsideration, but it was denied by the appellate court in its Resolution dated August 29, 2003.

Hence, the instant petition for review on certiorari.

The sole issue for our resolution is whether the subject article is libelous.

Article 353 of the Revised Penal Code, as amended, provides:

ART. 353. Definition of libel. A libel is a 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.

This provision should be read in relation with Article 355 of the same Code which states:

ART. 355. Libel by means of writings or similar means. A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished
by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the
civil action which may be brought by the offended party.

Thus, for an imputation to be libelous, the following requisites must be present: (a) it must be defamatory; (b) it must be malicious; (c) it must

be given publicity; and (d) the victim must be identifiable.[2] Absent one of these elements, a case for libel will not prosper.

We find the first element present. In determining whether a statement is defamatory, the words used are to be construed in their entirety and

should be taken in their plain, natural, and ordinary meaning as they would naturally be understood by the persons reading them, unless it appears that

they were used and understood in another sense.[3] In the instant case, the article in question details the sexual activities of a certain Miss S and one

Philip Henson who had a romantic liaison. In their ordinary sense, the words used cast aspersion upon the character, integrity, and reputation of Miss

S. The words convey that Miss S is a sexual libertine with unusually wanton proclivities in the bedroom. In a society such as ours, where modesty is still

highly prized among young ladies, the behavior attributed to Miss S by the article in question had besmirched both her character and reputation.

As to the element of malice, we find that since on its face the article is defamatory, there is a presumption that the offender acted with malice.

In Article 354 of the same Code, 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. There is malice when the author of the imputation is prompted by personal ill-will or spite and speaks not in response to duty but

merely to injure the reputation of the person who claims to have been defamed. [4] We agree with the Court of Appeals that there was neither good

reason nor motive why the subject article was written except to embarrass Miss S and injure her reputation.

On the element of publication, there can be no question that the article appeared in the December 28, 1991 issue of Bandera, a local tabloid.

The last element of libel is that the victim is identified or identifiable from the contents of the libelous article. In order to maintain a libel suit, it

is essential that the victim be identifiable, although it is not necessary that the person be named. It is enough if by intrinsic reference the allusion is

apparent or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the

person alluded to, or if the latter is pointed out by extraneous circumstances so that those knowing such person could and did understand that he was
the person referred to.[5] Kunkle v. Cablenews-American and Lyons[6] laid the rule that this requirement is complied with where a third person recognized

or could identify the party vilified in the article.

The libelous article, while referring to Miss S, does not give a sufficient description or other indications which identify Miss S. In short, the

article fails to show that Miss S and Florinda Bagay are one and the same person.

Although the article is libelous, we find that Florinda Bagay could not have been the person defamed therein. In Uy Tioco v. Yang Shu

Wen,[7] we held that where the requirement for an identified or identifiable victim has not been complied with, the case for libel must be dismissed.

WHEREFORE, we GRANT the petition. The challenged Decision of the Court of Appeals in CA-G.R. CR No. 22545

is REVERSED. Petitioner Ogie Diaz is ACQUITTED of the crime of libel. The bail on appeal posted for his temporary liberty is ordered CANCELLED.

SO ORDERED.
THE SUPREME COURT AND FREE SPEECH

uly 24, 1930

In re SEVERINO LOZANO and ANASTASIO QUEVEDO.

The petitioner Jose Y. Torres as complainant in this case.

Attorney-General Jaranilla for the Government.
Severino M. Lozano and Anastacio Quevedo in their own behalf.

MALCOLM, J.:

The novel question here presented relates to the power of the Supreme Court to punish for contempt, the editor and the reporter of a newspaper, for
publishing and inaccurate account of the investigation of a Judge of First Instance notwithstanding the investigation was conducted behind closed doors,
and notwithstanding a resolution of this court which makes such proceedings confidential in nature. The question arises on the petition of the Attorney-
General praying the court to require the editor and the reporter to show cause, if any they have, why they should not be punished for contempt. The
answer of the editor pleads good faith, while the answer of the reporter relies on no less than ten reasons, some material and some puerile, why the
petition should be dismissed.

Sometime ago, the complaint of an attorney against a Judge of First Instance was by resolution of this court referred to the Attorney-General for
investigation, report, and recommendation. The Solicitor-General was designated to conduct the investigation of the charges, and pursuant to said
designation, proceeded to the municipality of Capiz, Province of Capiz, to take the testimony of certain witnesses. The investigation was conducted
secretly, as is customary in cases of this character. Notwithstanding, on April 29, 1930, El Pueblo, a newspaper published in Iloilo and edited by
Severino Lozano, printed an account of the investigation written by Anastacio Quevedo, said to be an employee in the office of the Judge under
investigation. The opening portion of this article, as translated from Spanish to English, reads:

NOTES FROM CAPIZ

INVESTIGATION OF THE CHARGES AGAINST JUDGE GARDUÑO

xxx xxx xxx

CAPIZ, April 25, 1930

The announced investigation of the administrative charges filed in the Supreme Court by ex-attorney Jose Y. Torres against Judge Garduño
was commenced on the 22nd instant in the Court of First Instance of Capiz. The Solicitor-General, Alexander Reyes, was designated to
investigate the charges in behalf of the Attorney-General, to whom they were indorsed for investigation.

It appears that it was some three months ago that the investigation was begun in the office of the Solicitor-General in Manila, and that,
therefore, the proceedings taken here were but its continuation. The hearing was held behind closed doors, notwithstanding my desire to
attend the same in order to take notes and send them, for publication, to the newspaper El Pueblo, which I represent as correspondent.

However, behind the screen which shut the door of the investigation room, something could be heard of what transpired within, and to this
circumstance, together with the comments offered gratis et amore in social circles, are due the present notes of the hearing.

The remaining portion of the article purports to give an account of the evidence of the different witnesses. Regarding this account, the complainant
attorney alleges that the facts therein contained are "false, malicious, and untrue" and that "said report took sides with the respondent judge . . . and
expressed an opinion as to the merits of the same, with the object undoubtedly, to influence the action of the investigator and the public in general and to
obstruct, embarrass or impede the course of the present investigation." In the same connection, the Attorney-General states that the newspaper report
"does not contain a fair and true account of the facts disclosed at the investigation, . . . creating a wrong impression in the mind of the public and tending
to influence improperly the action of this court in the said pending matter." Under the circumstances, the observations of the Attorney-General must
necessarily be accepted as true.

At the time of publication of the aforementioned article, there was in force a resolution of this court dated January 27, 1922, which provided "That all
proceedings looking to the suspension or disbarment of lawyers, and all proceedings looking to the suspension or removal of judges of first instance,
shall be considered confidential in nature until the final disposition of the matter." In so far as this resolution relates to the suspension or removal of
Judges of First Instance, it finds support in section 173 of the Administrative Code, authorizing the Supreme Court to conduct inquiries into the conduct
of Judges of First Instance "and to adopt such rules of procedure in that regard as it may deem proper." The reason for the adoption of such a rule is
readily explainable and consists in the practice of litigants and others making vindictive and malicious charges against lawyers and Judges of First
Instance, which are ruinous to the reputations of the respondent lawyers and judges. It was accordingly thought best to keep such matters secret for the
good of the administration of justice until the final outcome of the proceedings could be ascertained.

We come now to a determination of the right of the court to take action in a case of this character. It has previously been expressly held that the power to
punish for contempt is inherent in the Supreme Court (In re Kelly [1916], 35 Phil., 944). That this power extends to administrative proceedings as well as
to suits at law cannot be doubted. It is as necessary to maintain respect for the courts, indeed to safeguard their very existence, in administrative cases
concerning the removal and suspension of judges as it is in any other class of judicial proceedings.

The rule is well established that the newspaper publications tending to impede, obstruct, embarass, or influence the courts in administering justice in a
pending suit or proceeding constitute criminal contempt which is summarily punishable by the courts. The rule is otherwise after the cause is ended. It is
also regarded as an interference with the work of the courts to publish any matters which their policy requires should be kept private, as for example the
secrets of the jury room, or proceedings in camera (6 R. C. L., pp. 508-515)

An examination of the authorities discloses that little attention has been directed to facts like those before us, and that in the few cases which have given
consideration to the question there exist divergence of opinions. The English courts are more stringent in prohibiting the publication of their proceedings
than are the American courts. Thus where the petitioner and her solicitor published a copy of the transcript of the official shorthand notes in a case of a
very delicate and private character in contravention of an order directing that the cause be heard in camera, the presiding judge in England found the
petitioner and her solicitor in contempt of court but accepted their excuses and apologies (Scott vs. Scott [1912], Am. Ann. Cas., 1912-B, 540). A
decision of the Supreme Court of Iowa inclines to general or special rule the publication of testimony pending an investigation has been prohibited, a
willful violation of such rule might amount to a contempt, especially if the rule itself declared the act to be a contempt (State of Iowa vs. Dunham [1858],
6 Iowa, 245). But in a California divorce case, although the trial court ordered that no public report of the testimony should be made, and thereafter
punished the editor of a newspaper for publishing a report of the trial, on the certiorari the Supreme Court of California annulled the proceedings of the
court under review. As explanatory of this judgment, it should be said that a fair and true report of the testimony was published and that the result was
influenced by the phraseology of the California law (Re Shortridge [1893], 99 Cal., 526; 21 L. R. A., 755). Along similar lines is the case of Ex parte
Foster ([1930], 60 L. R. A., 631), coming from the Texas Court of Criminal Appeals, and not holding that merely publishing a true statement of the
testimony adduced from the witnesses in the course of a public trial in the courts of justice does not authorize a finding of contempt. To conclude our
review of the pertinent decisions, we desire to quote from the decision of the Supreme Court of Wisconsin in Burns vs. State ([1911], 145 Wis., 373; 140
Am. St. Rep., 1081), where, in referring to the commendation meted out to the courts of England, it was said: "Judicial proceedings, in a case which the
law requires to be conducted in secret for the proper administration of justice, should never be, while the case is on trial, given publicity by the press."

With reference to the applicability of the above authorities, it should be remarked first of all that this court is not bound to accept any of them absolutely
and unqualifiedly. What is the best for the maintenance of the Judiciary in the Philippines should be the criterion. Here, in contrast to other jurisdictions,
we need not be overly sensitive because of the sting of newspaper articles, for there are no juries to be kept free from outside influence. Here also we
are not restrained by regulatory law. The only law, and that the judge made, which is at all applicable to the situation, is the resolution adopted by this
court. That the respondents were ignorant of this resolution is no excuse, for the very article published by them indicates that the hearing was held
behind closed doors and that the information of the reporter was obtained from outside the screen and from comments in social circles. Then in writing
up the investigation, it came about that the testimony was mutilated and that the report reflected upon the action of the complainant to his possible
disadvantage.

The Organic Act wisely guarantees freedom of speech and press. This constitutional right must be protected in its fullest extent. The court has
heretofore given evidence of its tolerant regard for charges under to Libel Law which come dangerously close to its violation. We shall continue in this
chosen path. The liberty of the citizen must be preserved in all of its completenes. But license or abuse of liberty of the press and of the citizen should
not be confused with liberty in its true sense. As important as is the maintenance of the Judiciary. Respect for the Judiciary cannot be had if persons are
privileged to scorn a resolution of the court adopted for good purposes, and if such persons are to be permitted by subterranean means of diffuse
inaccurate accounts of confidential proceedings to the embarrassment of the parties and the courts.

In recent Federal case (U. S. vs. Sullens [1929], 36 Fed. [2d], 230, 238, 239), Judge Holmes very appropriately said:

The administration of Justice and the freedom of the press, though separate and distinct, are equally sacred, and neither should be violated by
the other. The press and the courts have correlative rights and duties and should cooperate to uphold the principles of the Constitution and
laws, from which the former receives its prerogative and the latter its jurisdiction. The right of legitimate publicity must be scrupulously
recognized and care taken at all times to avoid impinging upon it. In a clear case where it is necessary, in order to dispose of judicial business
unhampered by publication which reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice, this
court will not hesitate to exercise its undoubted power to punish for contempt. . . . .

xxx xxx xxx

This court must be permitted to proceed with the disposition of its business in an orderly manner free from outside interference obstructive of
its constitutional functions. This right will be insisted upon as vital to an impartial court, and, as a last resort, as an individual exercises the right
of self-defense, it will act to preserve its existence as an unprejudiced tribunal. . . . .

As has been remarked, the parties plead ignorance in extenuation of their offense. We accept as certain this defense. It is made known also that other
newspapers, particularly in the metropolis, have been guilty of similar acts. That likewise is undoubtedly true, but does not purge the respondents of their
contempt. All facts considered, we desire on the one hand to proceed on the corrective and not true retaliatory idea of punishment, while on the other
giving due notice that practices of which the respondents are guilty must stop.

It is the holding of the court that the respondents Severino Lazano and Anastacio Quevedo are guilty of contempt of court, and it is the order of the court
that they be punished for such contempt by the payment of a nominal sum by each of them in the amount of twenty pesos (P20), to be turned into the
office of the clerk of court within the period of fifteen days from receipt of notice, with the admonition that if they fail to comply, further and more drastic
action by the court will be necessary.

A.M. No. 93-2-037 SC April 6, 1995

IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its First Vice-President, Mr. Vicente R.
Samson, appellant,

NARVASA, C.J.:

Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges, is what is involved in the
proceeding at bar — than which, upon its facts, there is perhaps no more appropriate setting for an inquiry into the limits of press freedom as it relates to
public comment about the courts and their workings within a constitutional order.

1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is needed, these being:

1) that the utterance or publication by a person of falsehood or half-truths, or of slanted or distorted versions of facts — or
accusations which he made no bona fide effort previously to verify, and which he does not or disdains to prove — cannot be justified
as a legitimate exercise of the freedom of speech and of the press guaranteed by the Constitution, and cannot be deemed an
activity shielded from sanction by that constitutional guaranty;

2) that such utterance or publication is also violative of "The Philippine Journalist's Code of Ethics" which inter alia commands the
journalist to "scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by
improper omission or emphasis," and makes it his duty "to air the other side and to correct substantive errors promptly;" 1

3) that such an utterance or publication, when it is offensive to the dignity and reputation of a Court or of the judge presiding over it
or degrades or tends to place the courts in disrepute and disgrace or otherwise to debase the administration of justice, constitutes
contempt of court and is punishable as such after due proceedings; and

4) that prescinding from the obvious proposition that any aggrieved party may file a complaint to declare the utterer or writer in
contempt, the initiation of appropriate contempt proceedings against the latter by the court is not only its prerogative but indeed its
duty, imposed by the overmastering need to preserve and protect its authority and the integrity, independence and dignity of the
nation's judicial system.

2. Antecedents

This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the "Manila Standard." He describes himself
as a columnist, who "incidentally happens to be a lawyer," remarking that while he values his membership in the law profession, "such membership is
neither a critical nor indispensable adjunct in the exercise of his occupation as a newspaperman." 2 His column in the "Manila Standard" is entitled
"Opinion."

Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about October, 1992 to March, 1993).
Other journalists had also been making reports or comments on the same subject. At the same time, anonymous communications were being
extensively circulated, by hand and through the mail, about alleged venality and corruption in the courts. And all these were being repeatedly and
insistently adverted to by certain sectors of society.

In light of these abnormal developments, the Chief Justice took an extraordinary step. He issued Administrative Order No. 11-93 dated January 25,
1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary," 3 reading as follows:

WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified reports respecting corruption in
the judiciary, said rumors and reports not only having been mentioned by media and in anonymous communications, but having also
been adverted to by certain government officials and civic leaders.

NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted composed of Chief Justice Andres R.
Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as
Members, which shall seek to ascertain the truth respecting said reports and statements, and to this end, forthwith interview at
closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the matter and who may be
appealed to to share that knowledge with the Court, and otherwise gather such evidence as may be available. The Committee is
hereby authorized to use such facilities and personnel of the court as may be necessary or convenient in the fulfillment of its
assigned mission, and shall submit its report to the Court within thirty (30) days.

Material to the present inquiry are Jurado's published statements from late 1992 to the middle of February, 1993.

1. In his column of October 21, 1992, he wrote of "(j)udges in a number of regional trial courts in Metro Manila (who) have become
so notorious in their dealings with litigants and lawyers that they are now called the "Magnificent Seven."" He stated that "(i)t has
come to a point where lawyers and litigants try their darndest to stay away from these judges. The answer, of course, is obvious."

2. In his February 3, 1993 column, he adverted to another group, also named "Magnificent Seven," which, he said, should be
distinguished from the first. He wrote: "When lawyers speak of the "Magnificent Seven" one has to make sure which group they are
referring to. Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug-related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices who vote as one." 4

3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the "Dirty Dozen." In his column of October
21, 1992 he said that there are " . . . 12 judges who have acquired such reputation for graft and corruption that they are collectively
known as the "dirty dozen". These judges, I am told, are not satisfied with accepting bribes; they actually sell their decisions to the
litigants and "solicit" their bids for what is clearly an auction for the judge's decision."

According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges, supplanting some of those from Pasay, Pasig and
Quezon City; corruption in lower Courts had been admitted by an Executive Judge in a Metro Manila Regional Trial Court (column of
November 9, 1992); and because the "Dirty Dozen" had given Makati the reputation of having the most corrupt RTC in the country,
multi-nationals and financing institutions explicitly stipulate in their agreements that litigation in connection with these contracts may
be held anywhere in Metro Manila except in Makati; and lawyers confirm that Makati Judges, including some persons in the sheriffs
office, are the most corrupt, where before, Pasay and Quezon City had that dubious distinction (column of December 1, 1992).

4. In his November 9, 1992 column, he wrote about "a former appellate justice (who) "holds office" at a restaurant near the Court of
Appeals building. He is known as the contact man of five CA divisions. Lawyers say that this former jurist really delivers." In his
column of January 29, 1993, he adverted to the same unnamed former Justice as being "known for fixing cases for five CA divisions
(that is what he tells lawyers and litigants) for a fee. And if the price is right, the lawyer of the litigant paying can even write his own
decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a restaurant owned by the wife of a former
Marcos cabinet member and which has become a meeting place for judges, CA justices, practicing lawyers, prosecutors and even
Supreme Court justices. The former CA justice also has his own Chinese contact. After I exposed this last year, the habitues
became scarce. But they are back again, and the ex-justice is still-doing brisk business."

5. In his column of March 24, 1993, he made the claim that one can "get a temporary restraining order from a regional trial court in
Metro-Manila by paying the judge anywhere between P30,000.00 and P50,000.00."

Other columns of Jurado refer to:

 a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges where paid for decisions favoring drug-
traffickers and other big-time criminals, naming the judges and giving detailed accounts of the bribery (January 30, 1993);

b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had "hosted a lunch at its penthouse
mainly for some justices, judges, prosecutors and law practitioners" (January 12, 1993); 5

c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or more, depending on how
much money is at stake, that a case is raffled off to a Judge who will be "extremely sympathetic," and can arrange to have the Court
issue attachments or injunctions for a service fee of 1% over and above the regular premium of the attachment or injunction bond; a
Chinese-Filipino businessman who paid this "miracle worker" P300,000.00 on top of the regular premium on the
attachment/injunction bond (October 27, 1992);

d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule that cases seeking provisional remedies should be
raffled off to the judges," thus violating the rule that no case may be assigned in multi-sala courts without a raffle (January 28, 1993);

e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to nominate him to the Court of
Appeals; and a son and a nephew of JBC members, who were also nominated to the Court of Appeals, contrary to ethics
and delicadeza (January l6, 1993; and January 29, 1993);

f) what he denominates "a major determinant of promotion," i.e., having a relative in the JBC or the Supreme Court, or having a
powerful politician as sponsor, citing specifically, the following nominees to the Court of Appeals — Conrado Vasquez, Jr., son and
namesake of the Ombudsman and brother of the head of the Presidential Management Staff; Rosalio de la Rosa, "nephew of
Justice Relova and cousin of Chief Justice Narvasa;" and the fact that nomination of some worthy individuals was blocked because
they "incurred the ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul Victorino, closely
identified with former Senate President Salonga (January 25, 1993).

3. Events Directly Giving Rise

to the Proceeding at Bar

What may be called the seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992, in the so-called
"controversial case" of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision
the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in respondent's behalf on September 16, 1992, which has recently been resolved.

In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and one or two other newspapers published, on January 28, 1993, a report
of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This gentleman, it appears, had been commissioned by one of the
parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the decision of Justice Gutierrez in relation to a few of his
prior ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole or in part, by
the latter. Yerkes proffered the conclusion that the Gutierrez decision "looks, reads and sounds like the writing of the PLDT's counsel," 7

As might be expected, the Yerkes "revelations" spawned more public discussion and comment about the judiciary and the Supreme Court itself, much of
it unfavorable. There were calls for impeachment of the justices, for resignation of judges. There were insistent and more widespread reiterations of
denunciations of incompetence and corruption in the judiciary. Another derogatory epithet for judges was coined and quickly gained currency:
"Hoodlums in Robes."

It was at about this time and under these circumstances — particularly the furor caused by the Yerkes opinion that the PLDT decision was authored by a
PLDT lawyer — that Jurado wrote in his column on February 8, 1993, an item entitled, "Who will judge the Justices?" referring among other things to" . .
.
(a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some time last year —
and that luxurious hotel accommodations and all their other expenses were paid by a pubic utility firm . . . and that the trip . . . was arranged by the travel
agency patronized by this public utility firm." 8

This was the event that directly gave rise to the proceeding at bar.

a. Letter and Affidavit of PLDT

For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine Long Distance Telephone Company),
addressed a letter to the Chief Justice, submitting his sworn statement in confutation of "the item in the column of Mr. Emil P. Jurado of the Manila
Standard on a vacation trip supposedly taken by six Justices with their families last year," and requesting that the Court "take such action as may be
appropriate." In his affidavit, Samson made the following averments: 9

xxx xxx xxx

While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hongkong has not been
disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the
decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern
Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference
that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those who talked to me
and the other officers of the PLDT after having read the Jurado column;

4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice, since the motions for
reconsideration filed by the losing litigants therein, Eastern Telecommunications Philippines, Inc. and NTC are still pending before
the Court, we have tried to refrain from making any public comments on these matters, lest any statement we make be interpreted
to be an attempt on our part to unduly influence the final decision of the Supreme Court in the above described case. However in the
interest of truth and justice, PLDT is compelled to emphatically and categorically declare that it is not the public utility firm referred to
in the Jurado column and that specifically, it has never paid for any such trip, hotel or other accommodations for any justice of the
Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their
families have made the trip referred to in the Jurado column;

5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to me or any other responsible officer of
PLDT about the matter quoted in par. 2 hereof;
 6. PLDT further emphatically and categorically denies that it had ever talked to or made arrangements with any travel agency or any
person or entity in connection with any such alleged trip of the Justices and their families to Hongkong, much less paid anything
therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;

7. The travel agencies which PLDT patronizes or retains for the trips, hotels or other accommodations of its officers and employees
are:

a. Philway Travel Corporation

M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila

b. Citi-World Travel Mart Corp.

Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.

The records of these travel agencies will bear out the fact that no arrangements were made by them at the instance of PLDT for the
trip referred to in the Jurado column.

b. Affidavit of Atty. William Veto

The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the "in-house counsel of Equitable Banking Corporation
since 1958," subscribed and sworn to on February 10, 1993, in relation to another article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993
he had "hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable Banking Corporation Building, Ermita Branch . . . upon prior permission .
. . obtained;" that the "expenses for said party were exclusively from my personal funds and the food was prepared in my house by my wife and served
by my house help . . . and four (4) waiters . . . hired from the nearby Barrio Fiesta Restaurant;" that among the invited guests "were members of the
Supreme Court and Court of Appeals who . . . were my friends of forty years since our days in law school;" and that the party was held in the lounge of
the bank instead of in "my residence" "unlike in former years . . . because my birthday happened to fall on a working day and my friends from the
Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their convenience because my residence is far from down town."

However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in the Manila Standard issues of January 12 and 28, 1993) as having
been "hosted (by the Equitable Bank) at its penthouse mainly for some justices, judges, prosecutors and law practitioners. . . ." And upon this premise,
Jurado indulged in the following pontification: "When those in the judiciary fraternize this way, what chances before the courts do other lawyers, who are
not "batang club," have against others who belong to the fraternity? In the case of prosecutors and fiscals, what chances do opposing counsels have
against those in the fraternity?" (column of January 12, 1993)

c. Information from Ad Hoc Committee

At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order No. 11-93) to the following effect:

1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an invitation to Atty. Emiliano Jurado to
appear before it "at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give the committee information that will assist it in its
task," i.e., to definitely and accurately determine the facts as regards the published rumors and reports of corruption in the judiciary;

2) that despite receipt of this letter by a responsible individual at the business address of Jurado, the latter failed to appear at the
time and place indicated; that instead, in his column in the issue of Manila Standard of February 4, 1993, Jurado stated that he was
told he was being summoned by the Ad Hoc Committee, but "(t)here is really no need to summon me. The committee can go by the
many things I have written in my column about corruption in the judiciary. Many of these column items have been borne out by
subsequent events."

3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the Committee's invitation, viz.:

It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session of February 4, 1992. All
indications are that you are the person with the most knowledge about corruption in the judiciary and hence, appear to be best
positioned to assist the Ad Hoc Committee in its function of obtaining evidence, or leads, on the matter. You have, I believe,
expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we
believe you will want to help the Court do precisely that, by furnishing the Committee with competent evidence, testimonial or
otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt
realize, being yourself a lawyer.

We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is simply a fact-finding body. Its
function is evidence-gathering. Although possessed of the authority to maintain and enforce order in its proceedings, and to compel
obedience to its processes, it is not an adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose
sanctions, on the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court itself, in which it is
lodged by the Constitution and the laws. Thus, at the conclusion of its evidence-gathering mission, the Ad Hoc Committee will
submit its report and recommendations to the Court which will then take such action as it deems appropriate.

The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice Hilario G. Davide, Jr. will
preside as Chairman at these hearings since I will be unable to do so in view of earlier commitments. We reiterate our invitation that
you come before the Committee, and you may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the
afternoon."

4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard, Jurado still failed to appear.

4. Statement of the Case:

Resolutions and Pleadings

a. Resolution of the February 16, 1993

After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered:
 1) that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly DOCKETED, and hereafter considered
and acted upon as an official Court proceeding for the determination of whether or not the allegations made by Atty. Emil Jurado
herein specified are true;

2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil
Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area, Manila; and copies of the same PLDT letter and affidavit, to
Philway Travel Corporation, M-7 Prince Tower Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World Travel
Mart Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila;

3) that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT letter and affidavit, the Philway
Travel Corporations and the Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT affirming or denying the
contents of the PLDT affidavit; and

4) that within fifteen (15) days from his receipt of notice of this resolution and of copies of said PLDT letter and affidavit and of the
affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on said affidavits as well as the allegations made by him in his columns,
herein specified, in which he shall make known to the Court the factual or evidentiary bases of said allegations.

b. Jurado's Comment dated

March 1, 1993.

As directed, Jurado filed his comment, dated March 1, 1993.

He explained that he had not "snubbed" the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate in any investigation on corruption
in the judiciary as this was what "his columns have always wanted to provoke." What had happened, according to him, was that the first invitation of
the Ad Hoc Committee was routed to his desk at the Manila Standard office on the day of the hearing itself, when it was already impossible to cancel
previous professional and business appointments; and the second invitation, "if it was ever received" by his office, was never routed to him; and he had
yet to see
it." 11 If the impression had been created that he had indeed "snubbed" the Ad Hoc Committee, he "sincerely apologizes."

He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on what he had written. He
expressed his firm belief that justice can be administered only by a judicial system that is itself just and incorruptible, and the hope that this Court would
view his response in this light.

He also made the following specific observations:

1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the affiant's belief and opinion and he
(Jurado) would not comment on it except to say that while Mr. Samson is entitled to his beliefs and opinions, these "bind only him
and the PLDT."

2. Atty. William Veto's affidavit substantially corroborated what he had written in vital details; hence, further substantiation would be
surplusage. In fact, the Supreme Court had confirmed the story in its press statement quoted by him (Jurado) in his January 30,
1993 column. His column about the Veto party constitutes fair comment on the public conduct of public officers.

3. The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge Teresita Dy-Liaco Flores on the
actuations of Judge de la Rosa and called the attention of the Court thereto, Judge Flores' complaint, a copy of which had been sent
to the Court Administrator, being on meriting its attention.

4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police report on seven (7) Makati judges authored
by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU, South CAPCOM, PNP, addressed to Vice-President Joseph E.
Estrada, a copy of which he had received in the news room of the Manila Standard. The existence of the report had been affirmed
by a reporter of the Manila Standard, Jun Burgos, when he appeared at the hearing of the Ad Hoc Committee on January 11, 1993.

5. His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives in the Judicial and Bar Council
echo the public perception, and constitute fair comment on a matter of great public interest and concern.

6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the "RTC-Makati's Dirty Dozen" (October 2, 1992,
November 9, 1992, and December 1, 1992); the "Magnificent Seven" in the Supreme Court (February 3,1993); 12 the lady secretary
of an RTC Judge (October 27, 1992); and the former Court of Appeals Justice "fixing" cases (January 29, 1993) were all based on
information given to him in strict confidence by sources he takes to be highly reliable and credible; and he could not elaborate on the
factual and evidentiary basis of the information without endangering his sources.

By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but also on information from sources
he has found by experience to be trustworthy. He cannot compromise these sources. He invokes Republic Act No. 53, as amended
by R.A. No. 1477, exempting the publisher, editor or reporter of any publication from revealing the source of published news or
information obtained in confidence, and points out that none of the matters subject of his columns has any bearing on the security of
the state.

c. Resolution of March 2, 1993

Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado's comment above mentioned, the Court received the affidavits of the
executive officials of the two travel agencies mentioned in the affidavit of PLDT Executive Vice-President Vicente R. Samson — in relation to the Jurado
column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-World Travel Mart Corporation, dated February 22, 1993, and that of Mrs.
Marissa de la Paz, General Manager of Philway Travel Corporation, dated February 19, 1993. Both denied ever having made any travel arrangements
for any of the Justices of the Supreme Court or their families to Hongkong, clearly and categorically belying the Jurado article.

By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that he submit comment thereon, if
desired, within ten (10) days from receipt thereof.

d. Jurado's Supplemental Comment

with Request for Clarification

In response, Jurado filed a pleading entitled "Supplemental Comment with Request for Clarification" dated March 15, 1993. In this pleading he alleged
that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters of their own personal knowledge; that he
(Jurado) had no specific knowledge of "the contents of these, let alone their veracity;" and that the affidavits "bind no one except the affiants and
possibly the PLDT." He also sought clarification on two points — as to the capacity in which he is being cited in these administrative proceedings —
whether "as full time journalist or as a member of the bar," and why he is being singled out, from all his other colleagues in media who had also written
about wrongdoings in the judiciary, and required to comment in a specific administrative matter before the Court sitting En Banc — so that he might
"qualify his comment and/or assert his right and privileges . . . .

e. Resolution of March 18, 1993

Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the Resolutions of February 16 and
March 2, 1993 had been addressed to him (according to his own depiction) in his capacity as "a full-time journalist" "who coincidentally happens to be a
member of the bar at the same time," and granted him fifteen (15) days from notice" to qualify his comment and/or assert his rights and privileges . . . in
an appropriate manifestation or pleading."

f. Jurado's Manifestation
dated March 31, 1993

Again in response, Jurado filed a "Manifestation" under date of March 31, 1993. He moved for the termination of the proceeding on the following posited
premises:

1. The court has no administrative supervision over him as a member of the press or over his work as a journalist.

2. The present administrative matter is not a citation for (a) direct contempt as there is no pending case or proceeding out of which a
direct contempt charge against him may arise, or (b) indirect contempt as no formal charge for the same has been laid before the
court in accordance with Section 3 (Rule 71) of the Rules of Court.

3. His comments would be more relevant and helpful to the Court if taken together with the other evidence and reports of other
journalists gathered before the Ad Hoc Committee. He perceives no reason why his comments should be singled out and taken up
in a separate administrative proceeding.

It is against this background of the material facts and occurrences that the Court will determine Jurado's liability, if any, for the above mentioned
statements published by him, as well as "such action as may be appropriate" in the premises, as the PLDT asks.

5. Norms for Proper Exercise of

Press Freedom

a. Constitutional Law Norms

In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional guarantee of free speech and the reality
that there are fundamental and equally important public interests which need on occasion to be balanced against and accommodated with one and the
other. There, the Court stressed the importance of the public interest in the maintenance of the integrity and orderly functioning of the administration of
justice. The Court said: 13

The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of free speech. He also
invokes the related doctrines of qualified privileged communications and fair criticism in the public interest.

Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this
Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not
absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally
important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice.
For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and
orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which
are accepted by the general community. As Mr. Justice Frankfurter put it:

. . . A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press.
Neither has primacy over the other; both are indispensable to a free society.

The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if
necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press.
(Concurring in Pennekamp v. Florida, 328 U.S. 331 at 354-356 [1946]).

Mr. Justice. Malcolm of this Court expressed the same thought in the following terms:

The Organic Act wisely guarantees freedom of speech and press. This constitutional right must be protected in
its fullest extent. The Court has heretofore given evidence of its tolerant regard for charges under the Libel Law
which come dangerously close to its violation. We shall continue in this chosen path. The liberty of the citizens
must be preserved in all of its completeness. But license or abuse of liberty of the press and of the citizens
should not be confused with liberty in its true sense. As important as is the maintenance of an unmuzzled press
and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary.
Respect for the Judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for
good purposes, and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts
of confidential proceedings to the embarrassment of the parties and the court. (In Re Severino Lozano and
Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).

b. Civil Law Norms

The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise, viz.:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
The provision is reflective of the universally accepted precept of "abuse of rights," "one of the most dominant principles which must be deemed always
implied in any system of law." 14 It parallels too "the supreme norms of justice which the law develops" and which are expressed in three familiar Latin
maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to live honorably, not to injure others, and to render to every man his
due). 15

Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the Constitution. But every
person exercising it is, as the Civil Code stresses, obliged "to act with justice, give everyone his due, and observe honesty and good faith." The
constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths — this would not be "to observe honesty and good
faith;" it may not be used to insult others; destroy their name or reputation or bring them into disrepute. — this would not be "to act with justice" or "give
everyone his due."

c. Philippine Journalist's
Code of Ethics

Also relevant to the determination of the propriety of Jurado's acts subject of the inquiry at bar are the norms laid down in "The Philippine Journalist's
Code of Ethics." The Code was published in the issue of February 11, 1993 of the Manila Standard, for which Jurado writes, as part of the paper's
"Anniversary Supplement." The first paragraph of the Code, 16 and its corresponding annotations, read as follows:

1. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by improper
omission or emphasis. I recognize the duty to air the other side and the duty to correct substantive errors promptly.

1. Scrupulous news gathering and beat coverage is required. Relying exclusively on the telephone or on what
fellow reporters say happened at one's beat is irresponsible.

2. The ethical journalist does not bend the facts to suit his biases or to please benefactors.He gathers all the
facts, forms a hypothesis, verifies it and arrives at an honest interpretation of what happened.

3. The duty to air the other side means that the journalist must contact the person or persons against whom
accusations are lodged. A court proceeding provides for this balance by presenting the prosecution and then
the defense. A news story or editorial column that fails to present the other side is like a court that does not hear
the side of the defense.

4. Correcting substantive errors is the mark of mature newspapers like the New York Times, the International
Herald Tribune, and some of Manila's papers.

d. Right to Private Honor

and Reputation

In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to private reputation. Judges, by
becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent standards of
honesty, integrity, and competence than are commonly required from private persons. 17 Nevertheless, persons who seek or accept from appointment to
the Judiciary cannot reasonably be regarded as having thereby forfeited any right whatsoever to private honor and reputation. For so to rule will be
simply, in the generality of cases, to discourage all save those who feel no need to maintain their self-respect as a human being in society, from
becoming judges, with obviously grievous consequences for the quality of our judges and the quality of the justice that they will dispense. Thus, the
protection of the right of individual persons to private reputations is also a matter of public interest and must be reckoned with as a factor in identifying
and laying down the norms concerning the exercise of press freedom and free speech.

Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the
maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these
two legitimate interest is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly
defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation
by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm represents the generally
accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the
Code of Ethics adopted by the journalism profession in the Philippines. 17a

6. Analysis of Jurado Columns

a. Re "Public Utility Firm"

Now, Jurado's allegation in his column of February 8, 1993 — "that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a
vacation in Hong Kong some time last year — and that luxurious hotel accommodations and all their other expenses were paid by a public utility firm and
that the trip reportedly was arranged by the travel agency patronized by this public utility firm," supra is — in the context of the facts under which it was
made — easily and quickly perceived as a transparent accusation that the PLDT had bribed or "rewarded" six (6) justices for their votes in its favor in the
case of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by not only paying all their
expenses — i.e., hotel accommodations and all other expenses for the trip — but also by having one of its own travel agencies arrange for such a trip.

As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of its responsible officers, Mr. Vicente
Samson, as well as by the heads of the two (2) travel agencies "patronized by it," Ermin Garcia, Jr. and Marissa de la Paz, supra.

That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it had been made
through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if unable to do either of these things, to offer to atone
for the harm caused.

But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in any manner whatever the emphatic
declaration of PLDT Vice-President Samson that —

While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hongkong has not been
disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the
decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern
Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference
that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those who talked to me
and the other officers of the PLDT after having read the Jurado column.
The record shows that he made no effort whatsoever to impugn, modify, clarify or explain Samson's positive assertion that:

. . . (the PLDT) has never paid for any such trip, hotel or other accommodations for any justice of the Supreme Court or his family
during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have made the trip
referred to in the Jurado column;

. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible officer of PLDT about the
matter. . .;

. . . PLDT . . . (never) talked to or made arrangements with any travel agency or any person or entity in connection with any such
alleged trip of the Justices and their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the
year 1992 as referred to in Par. 2 hereinabove;

What appears from the record is that without first having made an effort to talk to any one from the PLDT or the Supreme Court to ascertain the veracity
of his serious accusation, Jurado went ahead and published it.

His explanation for having aired the accusation consists simply of a declaration that Samson's affidavit, as well as the affidavits of the heads of the two
travel agencies regularly patronized by it, were just assertions of the affiants' belief and opinion; and that he (Jurado) would not comment on them
except to say that while they are entitled to their beliefs and opinions, these were binding on them only. This is upon its face evasion of duty of the most
cavalier kind; sophistry of the most arrant sort. What is made plain is that Jurado is in truth unable to challenge any of the averments in the affidavits of
PLDT and its travel agencies, or otherwise substantiate his accusation, and that his is a mere resort to semantics to justify the unjustifiable. What is
made plain is that his accusation is false, and possesses not even the saving grace of honest error.

If relying on second-hand sources of information is, as the Journalists' Code states, irresponsible, supra, then indulging in pure speculation or gossip is
even more so; and a failure to "present the other side" is equally reprehensible, being what in law amounts to a denial of due process.

b. Re Equitable Bank Party

Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto (the "in-house counsel of Equitable
Banking Corporation since 1958") as to project a completely false depiction of it. His description of that affair (in the Manila Standard issues of January
12 and 28, 1993) as having been hosted by the Equitable Bank "at its penthouse mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted, putting the rhetorical question about how such fraternization affects the chances
in court of lawyers outside that charmed circle.

When confronted with Veto's affidavit to the effect that the party was given by him at his (Veto's) own expense, the food having been prepared by his
wife in his house, and served by his house help and waiters privately hired by him; that he had invited many persons including friends of long standing,
among them justices of the Supreme Court and the Court of Appeals; and that the party had been held in the Officers' Lounge of Equitable Bank, instead
of his home, as in years past, to suit the convenience of his guests because his birthday fell on a working day, Jurado could not, or would not deign to,
contradict any of those statements. He merely stated that Veto's affidavit substantially corroborated what he had written in vital details, which is
obviously far from correct.

Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita
Branch, to determine the accuracy of what he would later report. If he did, he would quickly have learned that his sources, whoever or whatever they
were, were not to be relied upon. If he did not, he was gravely at fault — at the very least for disregarding the Journalist's Code of Ethics — in failing to
exert bona fide efforts to verify the accuracy of his information.

In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered explanation that the justices
having confirmed their presence at the luncheon, thus corroborating what he had written in vital details and making further substantiation unnecessary,
and that his report constituted fair comment on the public conduct of public officers, obviously does not at all explain why a party given by Atty. Veto was
reported by him as one tendered by Equitable Bank. The only conclusion that may rationally be drawn from these circumstances is that Jurado, unable
to advance any plausible reason for the conspicuous divergence between what in fact transpired and what he reported, again resorts to semantics and
sophistry to attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report and interpret the news; on the
contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent for it, and his playing up of the
Bank's supposed role as such host have resulted in an improper suppression of those facts and a gross distortion of the truth about them.

c. Re Other Items

Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of February 3, 1993 already adverted
to, 19 and more fully quoted as follows:

When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring to. Makati's "Magnificent
Seven" are a bunch of Makati regional trial court judges who fix drug related cases. The "Magnificent Seven" in the Supreme Court
consists of a group of justices who vote as one."

About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes of the Supreme Court Reports
Annotated (SCRA) in which are reported the decisions of the Supreme Court En Banc for the year 1992 (January to December) and for January 1993,
divulge not a single non-unanimous decision or resolution where seven (7) justices voted "as one," nor any group of decisions or resolutions where the
recorded votes would even suggest the existence of such a cabal.

This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by invoking unnamed and confidential
sources which he claims he considers highly credible and reliable and which would be imperiled by elaborating on the information furnished by them. He
would justify reliance on those sources on grounds of necessity, custom and usage and claim the protection of Republic Act No. 53, as amended by
Republic Act No. 1477 from forced, revelation of confidential news sources except when demanded by the security of the state. 20

Surely it cannot be postulated that the law protects a journalist who deliberately, prints lies or distorts the truth; or that a newsman may escape liability
who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual
basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces
to uselessness all the injunctions of the Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief
and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to
justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of
those sources.

Jurado's other writings already detailed here are of the same sort. While it might be tedious to recount what has already been stated about the nature
and content of those writings, it is necessary to do so briefly in order not only to stress the gravity he makes, but also to demonstrate that his response to
the call for their substantiation has been one of unvarying intransigence: an advertance to confidential sources with whose reliability he professes
satisfaction and whom fuller disclosure would supposedly compromise.

There can be no doubt of the serious and degrading character — not only to the Court of Appeals, but also to the judiciary in general — of his columns
of November 9, 1992 and January 29, 1993 concerning an unnamed former justice of the Court of Appeals who had allegedly turned "fixer" for five of the
Court's divisions and who, for the right price, could guarantee that a party's lawyer could write his own decision for and in the name of the ponente; and
of his column of March 24, 1993 to the effect that anywhere from P30,000 to P50,000 could buy a temporary restraining order from a regional trial court
in Manila.

The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues:

(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were "handsomely paid" for decisions favoring drug-
traffickers and other big-time criminals was based on nothing more than raw intelligence contained is confidential police report. It
does not appear that any part of that report has been reliably confirmed.

(b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in this proceeding, for his report of October
27, 1992 concerning an unnamed lady secretary of a Makati RTC Judge who, besides earning at least P10,000 for making sure a
case is raffled off to a "sympathetic" judge, can also arrange the issuance of attachments and injunctions for a fee of one (1%)
percent over and above usual premium for the attachment or injunction bond, a fee that in one instance amounted to P300,000.

(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary to ethics and delicadeza in
nominating to the Court of Appeals a son and a nephew of its members is completely untrue. The most cursory review of the
records of the Council will show that since its organization in 1987, there has not been a single instance of any son or nephew of a
member of the Council being nominated to the Court of Appeals during said member's incumbency; and in this connection, he
mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice (and then Member of the Judicial and
Bar Council) Lorenzo Relova when the truth, which he subsequently learned and admitted, was that the person referred to was
Judge Joselito de la Rosa, the son-in-law, not the nephew, of Justice Relova. Had he bothered to make any further verification, he
would have learned that at all sessions of the Council where the nomination of Judge Joselito de la Rosa was considered, Justice
Relova not only declined to take part in the deliberations, but actually left the conference room; and he would also have learned that
Judge Rosalio de la Rosa had never been nominated — indeed, to this date, he has not been nominated to the Court of Appeals.

(d) He has recklessly slandered the Judicial and Bar Council by charging that it has improperly made nominations to the Court of
Appeals on considerations other than of merit or fitness, through the manipulations of the Council's Secretary, Atty. Daniel Martinez;
or because the nominee happens to be a relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially identified as
Judge Rosalio de la Rosa) or of the Supreme Court (he could name none so situated); or has powerful political sponsor (referring to
RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of the truth of these statements is
precluded, not only by the familiar and established presumption of regularity in the performance of official functions, but also, and
even more conclusively by the records of the Judicial and Bar Council itself, which attest to the qualifications of Atty. Daniel
Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la Rosa, and Judge Conrado Vasquez, Jr., for membership in the
Appellate Tribunal;

(e) Equally false is Jurado's report (column of January 25, 1993) that nomination to the Court of Appeals of some worthy individuals
like Quezon City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino (who was closely identified with former Senate President
Salonga) had been blocked because they had "incurred the ire of the powers that be," the truth, which could very easily have been
verified, being that a pending administrative case against Judge Asuncion had stood in the way of his nomination, and since Mr.
Victorino had been sponsored or recommended by then Senate President Salonga himself, the fact that he was not nominated can
hardly be attributed to the hostility or opposition of persons in positions of power or influence.

(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about Executive Judge Rosalio de la Rosa of
the Manila Regional Trial Court as:

(1) having been nominated to the Court of Appeals by the Judicial and Bar Council chiefly, if not only, by reason
of being the nephew of Justice Relova and the cousin of Chief Justice Narvasa, the truth, as already pointed
out, being that Judge Rosalio de la Rosa had never been thus nominated to the Court of Appeals, the nominee
having been Judge Joselito de la Rosa, the son-in-law (not nephew) of Justice Relova; and

(2) having discarded the rule that cases seeking provisional remedies should be raffled off to the judges
(column of January 28, 1993) and adopted a system of farming out applications for temporary restraining
orders, etc., among all the branches of the court; here again, Jurado is shown to have written without thinking,
and made statements without verifying the accuracy of his information or seeking the views of the subject of his
pejorative statements; the merest inquiry would have revealed to him that while Circular No. 7 dated September
23, 1974 requires that no case may be assigned in multi-sala courts without raffle (for purposes of disposition
on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV), 21 empowers Executive
Judges to act on all applications for provisional remedies (attachments, injunctions, or temporary restraining
orders, receiverships, etc.), or on interlocutory matters before raffle, in order to "balance the workload among
courts and judges, (Sec. l, par. 2, id.), and exercise such other powers and prerogatives as may in his judgment
be necessary or incidental to the performance of his functions as a Court Administrator" (Sec. 7, par. 1, id.) —
these provisions being broad enough, not only to authorize unilateral action by the Executive Judge himself on
provisional remedies and interlocutory matters even prior to raffle of the main case, but also to delegate the
authority to act thereon to other judges.

Jurado does not explain why: (1) he made no effort to verify the state of the rules on the matter; (2) he
precipitately assumed that the views of Judge Teresita Dy-Liaco Flores, whose complaint on the subject he
claims he merely summarized, were necessarily correct and the acts of Judge de la Rosa necessarily wrong or
improper; and (3) he did not try to get Judge de la Rosa's side at all.

Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of their objective truth; the abdication of
the journalist's duty to report and interpret the news with scrupulous fairness; and the breach of the law's injunction that a person act with
justice, give everyone his due and observe honesty and good faith both in the exercise of his rights and in the performance of his duties.

7. Jurado's Proffered Excuses

and Defenses

The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously unavailing in light of the basic
postulates and the established axioms or norms for the proper exercise of press freedom earlier set forth in this opinion. 22
Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar principle reiterated inter
alia in Zaldivar v. Gonzales: 23

. . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of ministerial
officers of the Court including lawyers and all other persons connected in any manner with a case before the Court (In re Kelly, 35
Phil. 944 [1916]; In re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567 [1923];
and In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is "necessary for its own protection against improper
interference with the due administration of justice," "(i)t is not dependent upon the complaint of any of the parties litigant" (Halili v.
Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA 1
[1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630
[1946]).

Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English decisions
holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even when made after the trial stage or after the end
of the proceedings. The original doctrine laid down in People vs. Alarcon 24 — that there is no contempt if there is no pending case — has been
abandoned in subsequent rulings of this Court which have since adopted the Moran dissent therein, 25 viz.:

Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A publication which tends 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 courts. This is the rule announced in the cases relied upon by the majority. A publication
which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into
disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. In the language of the majority, what is
sought, in the first kind of contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the
courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice is
extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in
them. In the first, there is no contempt where there is no action pending, as there is no decision which might in any be influenced by
the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought to be protected is
the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their utility if public confidence in them is destroyed.

The foregoing disposes of Jurado's other contention that the present administrative matter is not a citation for direct contempt, there being no pending
case or proceeding out of which a charge of direct contempt against him may arise; this, even without regard to the fact that the statements made by him
about sojourn in Hongkong of six Justices of the Supreme Court were clearly in relation to a case involving two (2) public utility companies, then pending
in this Court. 26

His theory that there is no formal charge against him is specious. His published statements about that alleged trip are branded as false in no uncertain
terms by the sworn statement and letter of Vice-President Vicente R. Samson of the Philippine Long Distance Telephone Company which:

(a) "emphatically and categorically" deny that PLDT had made any arrangements with any travel agency, or with the two travel
agencies it patronized or retained, or paid anything, on account of such alleged trip;

(b) positively affirm (i) that PLDT was "not even aware that any of the justices or their families . . . (had) made the trip referred to in
the Jurado column," and (ii) that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to . . . (said Mr. Samson) or
any other responsible officer of PLDT about the matter . . .; and

(c) beseech the Court to "take such action (on the matter) as may be appropriate.

As already stated, the Court, in its Resolution of February 16, 1993:

(a) ordered the subject of Samson's letter and affidavit docketed as an official Court proceeding to determine the truth of Jurado's allegations about it;
and
(b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the luncheon party hosted by him (which Jurado reported as one
given by Equitable Bank) and that Jurado file comment on said affidavits as well as allegations in specified columns of his. Jurado was also furnished
copies of the affidavits later submitted by the two travel agencies mentioned in Samson's statement, and was required to comment thereon.

It was thus made clear to him that he was being called to account for his published statements about the matters referred to, and that action would be
taken thereon against him as "may be appropriate." That that was in fact how he understood it is evident from his submitted defenses, denying or
negativing liability for contempt, direct indirect. Indeed, as journalist of no little experience and a lawyer to boot, he cannot credibly claim an inability to
understand the nature and import of the present proceedings.

Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a journalist, and asks
why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated differently than his other colleagues in
media who were only asked to explain their reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that upon
all that has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation which tend to put it in
disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner.
Jurado has not been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn statements
branding his reports as lies and thus imposing upon him the alternatives of substantiating those reports or assuming responsibility for their publication.

Jurado would have the Court clarify in what capacity — whether a journalist, or as a member of the bar — he has been cited in these proceeding.
Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is being called to account as a lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions as journalist who has
misused and abused press freedom to put the judiciary in clear and present to the danger of disrepute and of public obdium and opprobrium, detriment
and prejudice of the administration of justice. That he is at the same time a member of the bar has nothing to do with the setting in of those sanctions,
although it may aggravate liability. At any rate, what was said about the matter in that earlier case is equally cogent here:

Respondent expresses perplexity at being called to account for the publications in question in his capacity as a member of the bar,
not as a journalist. The distinction is meaningless, since as the matter stands, he has failed to justify his actuations in either
capacity, and there is no question of the Court's authority to call him to task either as a newsman or as a lawyer. What respondent
proposes is that in considering his actions, the Court judge them only as those of a member of the press and disregard the fact that
he is also a lawyer. But his actions cannot be put into such neat compartments. In the natural order of things, a person's acts are
determined by, and reflect, the sum total of his knowledge, training and experience. In the case of respondent in particular the Court
will take judicial notice of the frequent appearance in his regular columns of comments and observations utilizing legal language and
argument, bearing witness to the fact that in pursuing his craft as a journalist he calls upon his knowledge as a lawyer to help inform
and influence his readers and enhance his credibility. Even absent this circumstance, respondent cannot honestly assert that in
exercising his profession as journalist he does not somehow, consciously or unconsciously, draw upon his legal knowledge and
training. It is thus not realistic, nor perhaps even possible, to come to fair, informed and intelligent judgment of respondent's
actuations by divorcing from consideration the fact that he is a lawyer as well as a newspaperman, even supposing, which is not the
case — that he may thereby be found without accountability in this matter.
 To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his actions be judged solely as those
of a newspaperman unburdened by the duties and responsibilities peculiar to the law profession of which he is also a member.

8. The Dissents

The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to purge Jurado's conduct of any taint of
contempt must now be briefly addressed.

a. Apparent Misapprehension
of Antecedents and Issue

Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the proceedings at bar but also the basic
issues involved.

The dissents appear to be of the view, for instance, that it was chiefly Jurado's failure to appear before the Ad Hoc Committee in response to two (2)
letters of invitation issued to him, that compelled the Court to order the matter to be docketed on February 16, 1993 and to require respondent Jurado to
file his Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of this opinion, supra, the direct cause of these proceedings was not
Jurado's refusal to appear and give evidence before the Ad Hoc Committee. The direct cause was the letters of PLDT and Atty. William Veto, supported
by affidavits, denouncing certain of his stories as false, 28 with the formerpraying that the Court take such action as may be appropriate. And it was
precisely "the matter dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and hereafter considered and
acted upon as an official Court proceeding;" this, by Resolution dated February 16, 1993; the Court also requiring, in the same Resolution, "that the
Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado . . .," and that Jurado should
comment thereon "as well as (on) the allegations made by him in his columns, herein specified" — because of explicit claims, and indications of the
falsity or, inaccuracy thereof.

There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise: (1) the right of newsmen to
refuse subpoenas, summons, or "invitations" to appear in administrative investigations," and (2) their right "not to reveal confidential sources of
information under R.A. No. 53, as amended" — which are not really involved here — in respect of which it is theorized that the majority opinion will have
an inhibiting effect on newsmen's confidential sources of information, and thereby abridges the freedom of the press.

(1) No Summons or Subpoena

Ever Issued to Jurado

The fact is that no summons or subpoena was ever issued to Jurado by the Ad Hoc Committee; nor was the issuance of any such or similar processes,
or any punitive measures for disobedience thereto, intended or even contemplated. Like most witnesses who gave evidence before the Committee,
Jurado was merely invited to appear before it to give information in aid of its assigned task of ascertaining the truth concerning persistent rumors and
reports about corruption in the judiciary. When he declined to accept the invitations, the Ad Hoc Committee took no action save to inform the Court
thereof; and the Court itself also took no action. There is thus absolutely no occasion to ascribe to that investigation and the invitation to appear thereat a
"chilling effect" on the by and large "hard-boiled" and self-assured members of the media fraternity. If at all, the patience and forbearance of the Court,
despite the indifference of some of its invitees and projected witnesses, appear to have generated an attitude on their part bordering on defiant
insolence.

(2) No Blanket Excuse Under RA 53

From Responding to Subpoena

Even assuming that the facts were as presented in the separate opinion, i.e., that subpoenae had in fact been issued to and served on Jurado, his
unexplained failure to obey the same would prima facie constitute constructive contempt under Section 3, Rule 71 of the Rules of Court. It should be
obvious that a journalist may not refuse to appear at all as required by a subpoena on the bare plea that under R.A. No 53, he may not be compelled to
disclose the source of his information. For until he knows what questions will be put to him as witness — for which his presence has been compelled —
the relevance of R.A. No. 53 cannot be ascertained. His duty is clear. He must obey the subpoena. He must appear at the appointed place, date and
hour, ready to answer questions, and he may invoke the protection of the statute only at the appropriate time.

b. The Actual Issue

The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and the Ad Hoc Committee
having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set out in the opening sentence of this opinion,
essentially concerns "(l)iability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges."

Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give testimony before the Ad
Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise honest and reasonable efforts to determine the
truth of defamatory statements before publishing them. He is being meted the punishment appropriate to the publication of stories shown to be false and
defamatory of the judiciary — stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable,
to substantiate.

c. RA 53 Confers No Immunity from Liability

for False or Defamatory Publications

This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential; that he cannot be
compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands such revelation. But it does hold that he
cannot invoke such right as a shield against liability for printing stories that are untrue and derogatory of the courts, or others. The ruling, in other words,
is that when called to account for publications denounced as inaccurate and misleading, the journalist has the option (a) to demonstrate their truthfulness
or accuracy even if in the process he disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In the latter event,
however, he must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which he is unwilling or
made no bona fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose sources is "without prejudice to . . .
liability under civil and criminal laws."

R.A. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that the publication of any news report or
information which was "related in confidence" to the journalist is not actionable; such circumstance (of confidentiality) does not purge, the publication of
its character as defamatory, if indeed it be such, and actionable on that ground. All it does is give the journalist the right to refuse (or not to be
compelled) to reveal the source of any news report published by him which was revealed to him in confidence.

A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y received a bribe of P1M each for
their votes in such and such a case, or that a certain Judge maintains a mistress, and when called to account for such statements, absolve himself by
claiming immunity under R.A. 53, or invoking press freedom.
 d. A Word about "Group Libel"

There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of unscrupulous newsmen who can
malign any number of anonymous members of a common profession, calling or persuasion, thereby putting an entire institution — like the judiciary in
this case — in peril of public contumely and mistrust without serious risk of being sued for defamation. The preceding discussions have revealed
Jurado's predilection for, if not his normal practice of, refusing to specifically identify or render identifiable the persons he maligns. Thus, he speaks of
the "Magnificent Seven," by merely referring to undisclosed regional trial court judges in Makati; the "Magnificent Seven" in the Supreme Court, as some
undesignated justices who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in Makati and three other cities. He adverts to an
anonymous group of justices and judges for whom a bank allegedly hosted a party; and six unnamed justices of this Court who reportedly spent a
prepaid vacation in Hong Kong with their families. This resort to generalities and ambiguities is an old and familiar but reprehensible expedient of
newsmongers to avoid criminal sanctions since the American doctrine of group libel is of restricted application in this jurisdiction. For want of a definitely
identified or satisfactorily identifiable victim, there is generally no actionable libel, but such a craven publication inevitably succeeds in putting all the
members of the judiciary thus all together referred to under a cloud of suspicion. A veteran journalist and lawyer of long standing that he is, Jurado could
not have been unaware of the foregoing realities and consequences.

e. Substantiation of News Report

Not Inconsistent with RA 53

It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him would necessarily negate or dilute his
right to refuse disclosure of its source. The argument will not stand scrutiny.

A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or immunity whatsoever.

If the "source" actually exists, the information furnished is either capable of independent substantiation, or it is not. If the first, the journalist's duty is
clear: ascertain, if not obtain, the evidence by which the information may be verified before publishing the same; and if thereafter called to account
therefor, present such evidence and in the process afford the party adversely affected thereby opportunity to dispute the information or show it to be
false.

If the information is not verifiable, and it is derogatory of any third party, then it ought not to be published for obvious reasons. It would be unfair to the
subject of the report, who would be without means of refuting the imputations against him. And it would afford an unscrupulous journalist a ready device
by which to smear third parties without the obligation to substantiate his imputations by merely claiming that the information had been given to him "in
confidence".

It is suggested that there is another face to the privileged character of a journalist's source of information than merely the protection of the journalist, and
that it is intended to protect also the source itself. What clearly is implied is that journalist may not reveal his source without the latter's clearance or
consent. This totally overlooks the fact that the object of a derogatory publication has at least an equal right to know the source thereof and, if indeed
traduced, to the opportunity of obtaining just satisfaction from the traducer.

9. Need for Guidelines

Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and very pertinent, question of whether a
journalist may put in print unverified information derogatory of the courts and judges and yet remain immune from liability for contempt for refusing, when
called upon, to demonstrate their truth on the ground of press freedom or by simply claiming that he need not do so since (or if) it would compel him to
disclose the identity of his source or sources.

The question, too, is whether or not we are prepared to say that a journalist's obligation to protect his sources of information transcends, and is greater
than, his duty to the truth; and that, accordingly, he has no obligation whatsoever to verify, or exercise bona fide efforts to verify, the information he is
given or obtain the side of the party adversely affected before he publishes the same.

True, the pre-eminent role of a free press in keeping freedom alive and democracy in full bloom cannot be overemphasized. But it is debatable if that
role is well and truly filled by a press let loose to print what it will, without reasonable restraints designed to assure the truth and accuracy of what is
published. The value of information to a free society is in direct proportion to the truth it contains. That value reduces to little or nothing when it is no
longer possible for the public to distinguish between truth and falsehood in news reports, and the courts are denied the mechanisms by which to make
reasonably sure that only the truth reaches print.

a. No Constitutional Protection for Deliberately

False or Recklessly Inaccurate Reports

It is worth stressing that false reports about a public official or other person are not shielded from sanction by the cardinal right to free speech enshrined
in the Constitution. Even the most liberal view of free speech has never countenanced the publication of falsehoods, specially the persistent and
unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while asserting that "(u)nder the First Amendment there is no such thing as a false
idea," and that "(h)owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the
competition of other ideas" (citing a passage from the first Inaugural Address of Thomas Jefferson), nonetheless made the firm pronouncement that
"there is no constitutional value in false statements of fact," and "the erroneous statement of fact is not worthy of constitutional protection (although) . . .
nevertheless inevitable in free debate." "Neither the intentional lie nor the careless error," it said, "materially advances society's interest in "unhibited,
robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They belong to that
category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit
that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L
Ed 1031, 62 S Ct 766 (1942).

"The use of calculated falsehood," it was observed in another case, 30 "would put a different cast on the constitutional question. Although honest
utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately
published about a public official, should enjoy a like immunity. . . . (T)he knowingly false statement and the false statement made with reckless disregard
of the truth, do not enjoy constitutional protection."

Similarly, in a 1969 case concerning a patently false accusation made against a public employee avowedly in fulfillment of a "legal, moral, or social
duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled that the guaranty of free speech cannot be considered as according
protection to the disclosure of lies, gossip or rumor, viz.:

. . . Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or disloyal officers and employees
thereof, where there is reasonable ground to believe that they fall under this category. He had no legal right, much less duty,
to gossip, or foster the circulation of rumors, or jump at conclusions and more so if they are gratuitous or groundless. Otherwise, the
freedom of speech, which is guaranteed with a view to strengthening our democratic institutions and promoting the general welfare,
would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private, selfish and vindictive ends,
thereby hampering the operation of the Government with. administrative investigations of charges preferred without any color or
 appearance of truth and with no other probable effect than the harassment of the officer or employee concerned, to the detriment of
public service and public order.

b. No "Chilling Effect"

The fear expressed, and earlier adverted to, that the principles here affirmed would have a "chilling effect" on media professionals, seems largely
unfounded and should be inconsequential to the greater number of journalists in this country who, by and large, out of considerations of truth, accuracy,
and fair play, have commendably refrained from ventilating what would otherwise be "sensational" or "high-visibility" stories. In merely seeking to infuse
and perpetuate the same attitude and sense of responsibility in all journalists, i.e., that there is a need to check out the truth and correctness of
information before publishing it, or that, on the other hand, recklessness and crass sensationalism should be eschewed, this decision, surely, cannot
have such "chilling effect," and no apprehension that it would deter the determination of truth or the public exposure of wrong can reasonably be
entertained.

The people's right to discover the truth is not advanced by unbridled license in reportage that would find favor only with extremist liberalism. If it has
done nothing else, this case has made clear the compelling necessity of the guidelines and parameters elsewhere herein laid down. They are eminently
reasonable, and no responsible journalist should have cause to complain of difficulty in their observance.

10. Afterword

32
It seems fitting to close this opinion, with the words of Chief Justice Moran, whose pronouncements have already been earlier quoted, and are as
germane today as when they were first written more than fifty (50) years ago. 33

It may be said that respect to courts cannot be compelled and that public confidence should be a tribute to judicial worth, virtue and
intelligence. But compelling respect to courts is one thing and denying the courts the power to vindicate themselves when outraged
is another. I know of no principle of law that authorizes with impunity a discontended citizen to unleash, by newspaper publications,
the avalanche of his wrath and venom upon courts and judges. If he believes that a judge is corrupt and that justice has somewhere
been perverted, law and order require that he follow the processes provided by the Constitution and the statutes by instituting the
corresponding proceedings for impeachment or otherwise. . . .

xxx xxx xxx

It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This suggestion has, however, no
rational basis in principle. In the first place, the outrage is not directed to the judge as a private individual but to the judge as such or
to the court as an organ of the administration of justice. In the second place, public interests will gravely suffer where the judge, as
such, will, from time to time, be pulled down and disrobed of his judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same reasons of public policy which exempt a judge from civil liability in
the exercise of his judicial functions, most fundamental of which is the policy to confine his time exclusively to the discharge of his
public duties, applies here with equal, if not superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403; Ex
parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N. E. 194). . . .

Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy and the injury that he
might cause to the name and reputation of those of whom he wrote. They constitute contempt of court, directly tending as they do to degrade or abase
the administration of justice and the judges engaged in that function. By doing them, he has placed himself beyond the circle of reputable, decent and
responsible journalists who live by their Code or the "Golden Rule" and who strive at all times to maintain the prestige and nobility of their calling.

Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed here, Jurado has maintained a defiant stance. "This is a fight I will not run
from," he wrote in his column of March 21, 1993; and again, "I will not run away from a good fight," in his column of March 23, 1993. Such an attitude
discourages leniency, and leaves no choice save the application of sanctions appropriate to the offense.

WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of contempt of court and in accordance with Section 6, Rule 71 of the Rules of
Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00).

IT IS SO ORDERED.

CYBERSPACE

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and
THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI
Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and
GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT
OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her
capacity as Secretary of Justice, Respondents.

x-----------------------x

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist BIENVENIDO L. LUMBERA,
Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis
Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director
of the Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of Investigation,
D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior
and Local Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and
RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
HONORABLE MANUEL ROXAS in his capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND
THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION
TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.

x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT,Respondents.

x-----------------------x
G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;
BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines; SENATE OF THE PHILIPPINES,
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO
R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as
Executive Director, Information and Communications Technology Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director,
National Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the Philippines; HON. PAQUITO N. OCHOA,
JR., in his official capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS
NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information and Communications Technology Office; NONNATUS
CAESAR R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL NICANOR A.
BARTOLOME, in his official capacity as Chief of the Philippine National Police,Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity as President and in his personal
capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT
AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC
ACT 10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA
TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO,
MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional
and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study, amusement, upliftment, or pure
curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for special audiences like associates,
classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;
 4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, trade houses, credit card companies,
public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual accesses to and uses of the internet. The
cyberspace is a boon to the need of the current generation for greater information and facility of communication. But all is not well with the system since
it could not filter out a number of persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory statements against him that people
can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use the cyberspace for committing theft by
hacking into or surreptitiously accessing his bank account or credit card or defrauding him through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and networks of indispensable or highly
useful institutions as well as to the laptop or computer programs and memories of innocent individuals. They accomplish this by sending electronic
viruses or virtual dynamites that destroy those computer systems, networks, programs, and memories. The government certainly has the duty and the
right to prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities violate certain of their constitutional
rights. The government of course asserts that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent
hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended the original 120-day temporary
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law until
further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as crimes and impose penalties for
their commission as well as provisions that would enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of libel.
 The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with the fundamental rights of the people
and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in determining the constitutionality of laws that
tend to target a class of things or persons. According to this standard, a legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest. 2 Later,
the strict scrutiny standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental
rights, as expansion from its earlier applications to equal protection. 3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act – accessing the computer system of another without right. It is a universally
condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information. Ethical hackers evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent
auditors who come into an organization to verify its bookkeeping records. 5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free card."6Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic
data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that
unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at
all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case
their computer data, electronic document, or electronic data message. Such act has no connection to guaranteed freedoms. There is no freedom to
destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect 9 or the fear of possible prosecution that hangs on
the heads of citizens who are minded to step beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws because
they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct. 10 Here, the chilling effect that results
in paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
 (i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the
domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being narrowly tailored, it will cause a user
using his real name to suffer the same fate as those who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person
who registers such name because he claims it to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a pseudo-name for it is the evil purpose
for which he uses the name that the law condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead,
destroy reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration, or deletion of identifying information
belonging to another, whether natural or juridical, without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and correspondence, and transgresses the freedom
of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy
exists independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon" 15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is
a "constitutional right" and "the right most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and seizures, which is the basis of the right
to be let alone, and (b) the right to privacy of communication and correspondence.17 In assessing the challenge that the State has impermissibly intruded
into these zones of privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion. 18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to privacy
and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific conducts proscribed do not intrude
into guaranteed freedoms like speech. Clearly, what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered from accessing the unrestricted user
account of a person in the news to secure information about him that could be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of the offender, and it may be presumed from the
furtive taking of useful property pertaining to another, unless special circumstances reveal a different intent on the part of the perpetrator. 20 As such, the
press, whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under this Act:

xxxx
(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded,"
or "a token of love (as a ribbon) usually worn conspicuously." 22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing x x x between and among two private persons x x x although that may be a form
of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary to
constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage
in prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design involving the use of a person by another, for
sexual intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a
right, has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity. 30The Court will not declare Section
4(c)(1) unconstitutional where it stands a construction that makes it apply only to persons engaged in the business of maintaining, controlling, or
operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009,
committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act
No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from invoking the ACPA when prosecuting persons who commit child pornography using a computer system.
Actually, ACPA’s definition of child pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for such higher penalty. 32 The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and abet the core offenses that ACPA seeks to punish. 34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered
aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication with the use of computer system which seeks
to advertise, sell, or offer for sale products and services are prohibited unless:
 (i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users,
subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading information in any part of the message in
order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term "spam" surfaced in early internet
chat rooms and interactive fantasy games. One who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications or spams are a nuisance that wastes the
storage and network capacities of internet service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded the same level of protection as that given to other constitutionally
guaranteed forms of expression but is nonetheless entitled to protection. 36 The State cannot rob him of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on
cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — 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.

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 not 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.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing, lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of the RPC on libel. Thus Section 4(c)(4)
reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer
system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory statement by virtue of Article 354 of the penal code
infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v. People 39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published.
Gross or even extreme negligence is not sufficient to establish actual malice. 43

The prosecution bears the burden of proving the presence of actual malice in instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter standard of "malice" to
convict the author of a defamatory statement where the offended party is a public figure. Society’s interest and the maintenance of good government
demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of actual malice or malice in fact when it
found Cristinelli Fermin guilty of committing libel against complainants who were public figures. Actually, the Court found the presence of malice in fact in
that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed statement. 45 For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-encompassing defense. As it happens, Article
361 recognizes truth as a defense but under the condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made
against Government employees with respect to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of expression. 48Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may be
necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an obligation to protect
private individuals from defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement or article. Cyberlibel brings with it
certain intricacies, unheard of when the penal code provisions on libel were enacted. The culture associated with internet media is distinct from that of
print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a world apart in terms of quickness of the
reader’s reaction to defamatory statements posted in cyberspace, facilitated by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in
relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses
enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall
be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids in the commission or attempts to
commit any of the offenses enumerated as cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting sufficiently protects the freedom of
expression of "netizens," the multitude that avail themselves of the services of the internet. He points out that existing laws and jurisprudence sufficiently
delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is
at times sufficient to guide law enforcement agencies in enforcing the law. 51 The legislature is not required to define every single word contained in the
laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets another in destroying a
forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of common sense and human
experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a year, translating to about 31 million
users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most engaged countries for social networking. 56 Social networking sites build
social relations among people who, for example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the
original "posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send and read short text-based messages
of up to 140 characters. These are known as "Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in the
form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a post is available to the public, any
Twitter user can "Retweet" a given posting. Retweeting is just reposting or republishing another person’s tweet without the need of copying and pasting
it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet café that may have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair with a movie star. Linda, one of
Maria’s friends who sees this post, comments online, "Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends
and the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this
blog, finds it interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to
that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts this on her Facebook account. Immediately,
Pamela’s Facebook Friends start Liking and making Comments on the assailed posting. A lot of them even press the Share button, resulting in the
further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with the statement on the poster.
He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends or Followers, availing themselves of
any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of
thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a
choice as to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions
that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an interactive computer service to send to a
specific person or persons under 18 years of age or to display in a manner available to a person under 18 years of age communications that, in context,
depict or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA is
a content-based regulation of speech. The vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain
silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the
risk of discriminatory enforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring speech that, in fact, falls outside the statute's
scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to
constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect
a person’s reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will suppress otherwise robust discussion of
public issues. Democracy will be threatened and with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime law that
punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as
appropriate only insofar as these doctrines are used to mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process,
lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts
a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons
not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes violating free speech. A person who does
not know whether his speech constitutes a crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into silence. 67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In
this case, the particularly complex web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory story against Armand like "He beats
his wife and children," then that should be considered an original posting published on the internet. Both the penal code and the cybercrime law clearly
punish authors of defamatory publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic groups, races, or religions,
exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography and facilitates the completion of
transactions involving the dissemination of child pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the Cybercrimes law lacks—the exemption of a provider
or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally protected. 69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or unwittingly. Does this make him a
willing accomplice to the distribution of child pornography? When a user downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
way. What is more, as the petitioners point out, formal crimes such as libel are not punishable unless consummated. 71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3)
on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker may for instance have done all that
is necessary to illegally access another party’s computer system but the security employed by the system’s lawful owner could frustrate his effort.
Another hacker may have gained access to usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If
Section 5 that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the username and password could
not file a complaint against him for attempted hacking. But this is not right. The hacker should not be freed from liability simply because of the vigilance
of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true with respect to cybercrimes that
tend to sneak past the area of free expression, any attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section
4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting
the commission of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete proof of the same,
the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be
one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of information and communications technology and similar crimes committed using
other means. In using the technology in question, the offender often evades identification and is able to reach far more victims or cause greater harm.
The distinction, therefore, creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves some important act which is not an essential element
of the other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave the determination of the correct
application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a
violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself claims
that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes the computer
system as another means of publication.75 Charging the offender under both laws would be a blatant violation of the proscription against double
jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s definition of child pornography in fact already covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the
damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred
thousand pesos (Ph₱500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos (Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that
provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at
least Fifty thousand pesos (Ph₱50,000.00) but not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality, Integrity and Availability of Computer
Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine penalties
for offenses is not diluted or improperly wielded simply because at some prior time the act or omission was but an element of another offense or might
just have been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or revise their
range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body. 78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or
electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor
identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of
the applicant and the witnesses he may produce and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that
will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right of every individual to privacy
and to be protected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has a rational relation to the purpose of the law, 79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn. 80 In assessing regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional guarantees. 81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the tremendous activities in
cyberspace for public good.82 To do this, it is within the realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law enforcement authorities with the power
they need for spotting, preventing, and investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno
points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or
record "traffic data, in real time, associated with specified communications." 83 And this is precisely what Section 12 does. It empowers law enforcement
agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed, adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration; 86 and producing child pornography87 could
easily evade detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In this digital age, the
wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-time
traffic data collection or recording and a subsequent recourse to court-issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards against crossing legal boundaries
and invading the people’s right to privacy. The concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain constitutional
guarantees work together to create zones of privacy wherein governmental powers may not intrude, and that there exists an independent constitutional
right of privacy. Such right to be left alone has been regarded as the beginning of all freedoms. 89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely without surveillance and
intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The second is an objective test, where his or
her expectation of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or group, petitioners’ challenge to
Section 12 applies to all information and communications technology (ICT) users, meaning the large segment of the population who use all sorts of
electronic devices to communicate with one another. Consequently, the expectation of privacy is to be measured from the general public’s point of view.
Without reasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone number of his recipient, accompanying the message
sent. It is this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing
it closed, and sending it through the postal service. Those who post letters have no expectations that no one will read the information appearing outside
the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do not disclose the actual names and addresses
(residential or office) of the sender and the recipient, only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the identities of the sender and the
recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s communication’s system will put his voice message into
packets and send them to the other person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in the
same way. To be connected by the service provider, the sender reveals his cellphone number to the service provider when he puts his call through. He
also reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone users in the ‘70s must realize that they
necessarily convey phone numbers to the telephone company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one another over cyberspace except through some
service providers to whom they must submit certain traffic data that are needed for a successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognize
as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are gathered in bulk, pooled together, and
analyzed, they reveal patterns of activities which can then be used to create profiles of the persons under surveillance. With enough traffic data, analysts
may be able to determine a person’s close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure that Section 12 of the
law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that Congress is not required to define the meaning of every word it uses in
drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law, dealing with a novel situation, fails to hint
at the meaning it intends for the phrase "due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement agencies use the traffic data to identify
the perpetrator of a cyber attack? Or will it be used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes from
happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that traffic data collection should not
disclose identities or content data, such restraint is but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked
information or, worse, to extortion from certain bad elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this supposed limitation is no limitation
at all since, evidently, it is the law enforcement agencies that would specify the target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever specified communication they want. This evidently threatens the right of
individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is not possible to get a court warrant
that would authorize the search of what is akin to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and that the procedure envisioned by the
law could be better served by providing for more robust safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to track cyberspace communications in real time and determine their sources and
destinations must be narrowly drawn to preclude abuses. 95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to monitor individuals and place them under surveillance
in ways that have previously been impractical or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic
and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be written with specificity and definiteness
as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a
service provider shall be preserved for a minimum period of six (6) months from the date of the transaction. Content data shall be similarly preserved for
six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or
stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the
Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They liken the data preservation order that
law enforcement authorities are to issue as a form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users
from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit
of users. By virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the transaction and those relating to content data for at least six months from receipt of
the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process of preserving data will not unduly hamper the normal transmission or use of
the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or
service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours
from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for
the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection is that the issuance of subpoenas is a judicial
function. But it is well-settled that the power to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually lodged in the hands of law enforcers to
enable them to carry out their executive functions. The prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would
it violate the privacy of communications and correspondence. Disclosure can be made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities
shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the
measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a
return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would ensure the proper collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were
taken. Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted upon the lapse of the prescribed period.
The Solicitor General justifies this as necessary to clear up the service provider’s storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the user’s right against deprivation of
property without due process of law. But, as already stated, it is unclear that the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found to be in violation of the provisions of this Act,
the DOJ shall issue an order to restrict or block access to such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts, images, audio, or video recordings.
Without having to go into a lengthy discussion of property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in
their personal computers or in the service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may, within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such
content violates some law, for to do so would make him judge, jury, and executioner all rolled into one. 100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule. 101 Section 19, however, merely requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of
the offense which are defined therein. If Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to make
reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-
agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the
President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of cybercrime offenses through a computer
emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the law to determine
the boundaries of the delegate’s authority and prevent the delegation from running riot. 103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that
can be used to protect cyber environment and organization and user’s assets.104 This definition serves as the parameters within which CICC should work
in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been considered as sufficient standard. 106 Hence, Sections 24
and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code are committed with the
use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data and subscriber information
as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration of the prescribed holding
periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and
UNCONSTITUTIONAL with respect to others who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D and CONSTITUTIONAL only in
relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes prosecution of the offender under
both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE EXCEPTION of the crimes of:
 1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal Code
constitutes a violation of the proscription against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of Republic Act 10175 and Republic Act
9775 or the Anti-Child Pornography Act of 2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.

SO ORDERED.

INFRINGES UPON RIGHT TO PRIVACY

PUBLIC FIGURE DOCTRINE

G.R. No. L-21049 December 22, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ISAAC PEREZ, defendant-appellant.

Mario Guariña for appellant.

Attorney-General Villa Real for appellee.

MALCOLM, J.:

Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to meet on the morning of April
1, 1992, in the presidencia of Pilar, they became engaged in a discussion regarding the administration of Governor-General Wood, which resulted in
Perez shouting a number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the
Filipinos, for he has killed our independence." Charged in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code having
to do with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has appealed the case to this court. The
question presented for decision is, What crime, if any, did the accused commit?

A logical point of departure is the information presented in this case. It reads in translation as follows:

That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said accused, Isaac Perez, while
holding a discussion with several persons on political matters, did criminally, unlawfully and wilfully and with knowledge that Honorable
Leonard Wood was the Governor-General of the Philippine Islands and in the discharge of his functions as such authority, insult by word,
without his presence, said Governor-General, uttering in a loud voice and in the presence of many persons, and in a public place, the following
phrases: "Asin an mangña filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang
recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the Filipinos, like myself, must use bolos for cutting off Wood's
head for having recommended a bad thing for the Philippines.

Contrary to article 256 of the Penal Code.

At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense. According to the first
witness for the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in question was this:

"The Filipinos, like myself, should get a bolo and cut off the head of Governor-General Wood, because he has recommended a bad administration in
these Islands and has not made a good recommendation; on the contrary, he has assassinated the independence of the Philippines and for this reason,
we have not obtained independence and the head of that Governor-General must be cut off." Higinio J. Angustia, justice of the peace of Pilar, in a
written statement, and Gregorio Cresencio, another witness for the prosecution, corroborated the testimony of the first witness. Cresencio understood
that Perez invited the Filipinos including himself to get their bolos and cut off the head of Governor-General Wood and throw it into the sea.

The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused participated. But they
endeavored to explain that the discussion was between Perez and one Severo Madrid, the latter maintaining that the fault was due to the Nacionalista
Party, while Perez argued that the Governor-General was to blame. The accused testified that the discussion was held in a peaceful manner, and that
what he wished to say was that the Governor-General should be removed and substituted by another. On the witness stand, he stated that his words
were the following: "We are but blaming the Nacionalista Party which is in power but do not take into account that above the representatives there is
Governor-General Wood who controls everything, and I told him that the day on which the Democrats may kill that Governor-General, then we, the
Filipinos will install the government we like whether you Democratas want to pay or not to pay taxes."

The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the accused made use of the
language stated in the beginning of this decision and set out in the information. The question of fact thus settled, the question of law recurs as to the
crime of which the accused should be convicted.

It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial judge so found in his
decision. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower court and is to the effect that article 256 of the
Penal Code is no longer in force.

In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was charged with having uttered the following language: "To hell with the
President of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and though the case was eventually sent back to the
court of origin for a new trial, the appellate court by majority vote held as a question of law that article 256 is still in force.

In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published an article reflecting on the Philippine Senate
and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by unanimous vote, with three members of the
court holding that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines, and with six members
holding that the Libel Law had the effect of repealing so much of article 256 as relates to written defamation, abuse, or insult, and that under the
information and the facts, the defendant was neither guilty of a violation of article 256 of the Penal Code nor of the libel Law. In the course of the main
opinion in the Perfecto case, is found this significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have
affected article 256, but as to this point, it is not necessary to make a pronouncement."
It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we can muster, that
until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to ministers of the Crown or to writings coming
under the Libel Law, exist and must be enforced. To which proposition, can properly be appended a corollary, namely: Seditious words, speeches, or
libels, constitute a violation of Act No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and the Libel Law are modified.

Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the law infringed in this
instance is not this article but rather a portion of the Treason and Sedition Law. In other words, as will later appear, we think that the words of the
accused did not so much tend to defame, abuse, or insult, a person in authority, as they did to raise a disturbance in the community.

In criminal law, there are a variety of offenses which are not directed primarily against individuals, but rather against the existence of the State, the
authority of the Government, or the general public peace. The offenses created and defined in Act No. 292 are distinctly of this character. Among them is
sedition, which is the raising of commotions or disturbances in the State. It is a revolt against legitimate authority. Though the ultimate object of sedition
is a violation of the public peace or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open violence against
the laws, or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil.,
64.)

It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of speech and the right of the
people peaceably to assemble and petition the Government for redress of grievances. Criticism is permitted to penetrate even to the foundations of
Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the
intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press
and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the
constitution and the laws, and the existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422;
People vs. Perfecto, supra.)

Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the Presidency of the United States
and other high offices, under a democratic form of government, instead, of affording immunity from promiscuous comment, seems rather to invite
abusive attacks. But in this instance, the attack on the Governor-General passes the furthest bounds of free speech was intended. There is a seditious
tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain
loyal to the Government and obedient to the laws.

The Governor-General is an executive official appointed by the President of the United States by and with the advice and consent of the Senate of the
United States, and holds in his office at the pleasure of the President. The Organic Act vests supreme executive power in the Governor-General to be
exercised in accordance with law. The Governor-General is the representative of executive civil authority in the Philippines and of the sovereign power.
A seditious attack on the Governor-General is an attack on the rights of the Filipino people and on American sovereignty. (Concepcion vs. Paredes
[1921], 42 Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.)

Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have been placed on the statute books exactly to meet
such a situation. This section reads as follows:

Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels against the Government of
the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or make any statement, or
speech, or do any act which tends to disturb or obstruct any lawful officer in executing his office or in performing his duty, or which tends to
instigate others to cabal or meet together for unlawful purposes, or which suggests or incites rebellious conspiracies or which tends to stir up
the people against the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the Government, or
who shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding two thousand
dollars United States currency or by imprisonment not exceeding two years, or both, in the discretion of the court.

In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate others to cabal or meet
together for unlawful purposes. He has made a statement and done an act which suggested and incited rebellious conspiracies. He has made a
statement and done an act which tended to stir up the people against the lawful authorities. He has made a statement and done an act which tended to
disturb the peace of the community and the safety or order of the Government. All of these various tendencies can be ascribed to the action of Perez
and may be characterized as penalized by section 8 of Act No. 292 as amended.

A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended, is, in effect, responsive to, and based upon, the
offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive. The crime of which the defendant stands
charged is that described by the facts stated in the information. In accordance with our settled rule, an accused may be found guilty and convicted of a
graver offense than that designated in the information, if such graver offense is included or described in the body of the information, and is afterwards
justified by the proof presented during the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure, p. 9.)

The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think, sufficiently punish the
accused.

That we have given more attention to this case than it deserves, may be possible. Our course is justified when it is recalled that only last year, Mr. Chief
Justice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of the Porto Rico, observed: "A reading of the two
articles removes the slightest doubt that they go far beyond the "exuberant expressions of meridional speech," to use the expression of this court in a
similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so excessive and outrageous in their character that they suggest the query
whether their superlative vilification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While
our own sense of humor is not entirely blunted, we nevertheless entertain the conviction that the courts should be the first to stamp out the embers of
insurrection. The fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it endangers the general public peace.

The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section 8 of Act No. 292 as
amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance with the sentence of the lower court, the
defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So ordered.

ALFONSO T. YUCHENGCO, G.R. No. 184315

Petitioner,

Present:
- versus -
CORONA, J.,

THE MANILA CHRONICLE PUBLISHING Chairperson,

CORPORATION, ROBERTO COYIUTO, JR., NOEL CHICO-NAZARIO,
CABRERA, GERRY ZARAGOZA, DONNA GATDULA,
RODNEY P. DIOLA, RAUL VALINO and THELMA SAN VELASCO, JR.,
JUAN, NACHURA, and

Respondents. PERALTA, JJ.

Promulgated:

November 25, 2009

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

When malice in fact is proven, assertions and proofs that the libelous articles are qualifiedly privileged communications are futile, since being
qualifiedly privileged communications merely prevents the presumption of malice from attaching in a defamatory imputation.

This is a Petition for Review on Certiorari assailing the Amended Decision[1] of the Court of Appeals in CA-G.R. CV No. 76995 dated 28
August 2008. The Amended Decision reversed on Motion for Reconsideration the 18 March 2008 Decision[2] of the same court, which in turn affirmed in
toto the Decision of the Regional Trial Court (RTC) of Makati City in Civil Case No. 94-1114 dated 8 November 2002 finding herein respondents liable for
damages.

The facts of the case, as summarized by the RTC, are as follows:

In his Complaint, plaintiff Alfonso T. Yuchengco alleges that in the last quarter of 1994, Chronicle Publishing Corporation
(Chronicle Publishing for brevity) published in the Manila Chronicle a series of defamatory articles against him. In two of the subject
articles (November 10 and 12, 1993 issues), he was imputed to be a Marcos crony or a Marcos-Romualdez crony, which term
according to him is commonly used and understood in Philippine media to describe an individual who was a recipient of special and
underserving favors from former President Ferdinand E. Marcos and/or his brother-in-law Benjamin Kokoy Romualdez due to
special and extra-ordinary closeness to either or both, and which favors allowed an individual to engage in illegal and dishonorable
business activities.

The plaintiff claims that the said articles further branded him as a mere front or dummy for the Marcos and Romualdez
clans in Benguet Corporation, which company sought to take-over the management of Oriental Petroleum Mineral Corporation
(Oriental for brevity). He contends that such an imputation is untrue since his holdings in Benguet Corporation were legally acquired
by him.

Also, he was likewise accused of unsound and immoral business practices by insinuating that he wanted to take control of
Oriental in order to divert its resources to rescue the debt-ridden Benguet Corporation. He claims that the accusation is untrue since
he was merely interested in being represented in the board thereof so as to protect his and his companies interest therein as
shareholders.

The subject articles insinuated that he personally and intentionally caused the failure of Benguet Corporation and that if
even if he ever assumed control of Oriental, it would suffer the same fate as the former. According to him, at the time he assumed
chairmanship of Benguet Corporation, it was already experiencing financial downturns caused by plummeting world prices of gold
and unprofitable investments it ventured into.
 Moreover, one of the articles portrayed him as being an unfair and uncaring employer when the employees of Grepalife
Corporation, of which he is the Chairman, staged a strike, when the truth being that he had nothing to do with it. And that if his group
takes over Oriental, it will experience the same labor problems as in Grepalife.

Furthermore, the subject articles accused him of inducing Rizal Commercial Banking Corporation (RCBC for brevity) to
violate the provisions of the General Banking Act on DOSRI loans. He denies the imputations believing that there is nothing irregular
in the RCBC-Piedras transaction for the acquisition of shares of Oriental.

Also, the plaintiff claims that the subject articles insinuated that he induced others to disobey lawful orders of the
Securities and Exchange Commission (SEC for brevity) when the truth is that the officials of RCBC and Alcorn never defied any
SEC order, and that if ever they did, he never induced them to do so.

Finally, the plaintiff asserts that the subject articles imputed to him the derogatory tag of corporate raider, implying that he
was seeking to profit for something he did not work for. He denies the imputation since he acquired his stake in Oriental for
adequate and valuable consideration at the time when no one was willing to bailout the government from its difficult and losing
position thereto.

In their Answer, the defendants deny liability claiming that the subject articles were not defamatory since they were
composed and published in good faith and only after having ascertained their contents. In any event, they claim that these articles
are privileged and/or constitute reasonable and balance[d] comments on matters of legitimate public interest which cannot serve as
basis for the finding of libel against them. They likewise alleged that they were acting within the bounds of constitutionally
guaranteed freedom of speech and of the press.

Furthermore, they contend that since plaintiff is a public figure, and assuming that the articles were indeed defamatory,
they cannot be held liable for damages since they were not impelled by actual malice in the composition thereof. They did not
compose and/or publish said articles with the knowledge that they contained falsehoods, or with reckless disregard on whether or
not they contained falsehood.

As to defendant Coyiuto, he claims that he had no participation in the publication of the subject articles nor consented or
approved their publication.

PLAINTIFFS EVIDENCE

During the trial, the plaintiff himself, ALFONSO T. YUCHENGCO, testified that prior to his appointment as Ambassador to
Japan, he was the chairman of various business organizations notably: Benguet Corporation (Benguet), Philippine Long Distance
Telephone Company, Rizal Commercial Banking Corporation (RCBC), Bank of America Savings Bank, House of Investments, Inc.,
Dole Philippines and Philippine Fuji Xerox Corporation. He was also the President of the Philippine Ambassadors; chairman or vice
president of Bantayog ng Bayan; and chairman of AY Foundation, Inc. He was appointed Philippine Ambassador to Peoples
Republic of China after the EDSA Revolution.

As regards the article referring to the November 10, 1993 issue of the Manila Chronicle (Exh. A), he stated that he had
never been a Marcos crony nor had been a business partner of the Romualdezes or had personal dealings with them; that during
the shareholders meeting, the two (2) sons of Benjamin Kokoy Romualdez were elected as directors of Benguet Corporation
pursuant to a Court order; that he had no personal dealings with them; that he had no intention of taking over Oriental and that
Benguet Corporation did not lose the amount as stated in the article; that Benguet Corporation experienced liquidity problems, and
that before he joined the corporation, it had already diversified into many other financial ventures; that he denied having any
business partnership with the Romualdezes at that time.

Regarding the November 12, 1993 issue of the Manila Chronicle (Exh. B), he denied having any partnership with the
Marcos family; that he denied responsibility for the losses incurred by Benguet Corporation, as the losses were due to the drop of
the commodity market, and for having diversified into other non-profitable ventures; that he had no intention whatsoever of taking
over Oriental; that although the Yuchengco family owns a substantial block of shares of RCBC, Sanwa Bank actually owns twenty-
five percent (25%) thereof; that RCBC did not finance his fund but it extended a loan to Piedras Petroleum, a subsidiary of the
Presidential Commission of Good Government (PCGG for brevity); admitted that Traders Royal Bank also granted a loan to PCGG
but such was an independent transaction of RCBC.

About the November 15, 1993 issue of the Manila Chronicle (Exh. C), he denied any knowledge of what transpired at the
Trust Department of RCBC because as Chairman he was not involved in many of the banks transactions.
 Referring to November 16, 1993 issue of the Manila Chronicle (Exh. D), he considered the attacks against him to be
malicious considering that he does not see any connection between the labor strike at Grepalife with the case of Alcorn and RCBC;
that the article would like to show that he was the reason for the huge losses incurred by Benguet Corporation.

As regards the November 22, 1993 issue of the Manila Chronicle (Exh. E), he denied giving any interest free loan, the fact
that they gave a loan to PCGG does not mean that they gave a loan to Benedicto since the latter had already turned over the shares
of Piedras to PCGG at that time.

Regarding the November 23, 1993 issue of the Manila Chronicle (Exh. F), he denied extending an interest free loan
considering that he is not the only owner of RCBC; that these series of attacks against him and RCBC were intended to cause a
bank run; that the article imputes that he was responsible for giving an interest free loan.

About the December 5, 1993 issue of the Manila Chronicle (Exh. G), he said the article was intended to humiliate and
embarrass him since he really had no intention of taking over Oriental; that the reason for the attack against his person was
because he and defendant Coyiuto, Jr. were both rivals in the insurance business and that the latter has always been envious of his
position for having owned Malayan Insurance Company.

On cross-examination, plaintiff Yuchengco testified that he does not consider himself a public figure; and that he felt
maligned by the references to him as a Marcos crony. [TSN, 07 February 1997; 10 February 1997; 12 February 1997]

ROSAURO ZARAGOZA testified that he is the Executive Vice-President of RCBC; that the statement in Exhibits D, E and
F with regard to the interest free loan allegedly granted to Piedras Petroleum Company, Inc. (Piedras) are false because the Piedras
deal was a trust transaction which involved an advance in exchange for shares of stock; that plaintiff Yuchengco did not have a
personal interest in the Piedras deal; that Piedras or Oriental Petroleum Mineral Corporation (Oriental Petroleum) shares were not
transferred to plaintiff Yuchengcos name by virtue of the transaction; and that the defendants did not approach him or RCBC to
check the veracity of the subject articles. The affidavit of Mr. Zaragoza (Exhibit H) was adopted as part of his testimony.

On cross-examination, Mr. Zaragoza testified that he volunteered to testify in the instant case because he was the most
knowledgeable about the Piedras deal; that plaintiff Yuchengco was aggrieved upon reading the subject articles; that under the
Memorandum of Agreement (MOA) between RCBC and Piedras, should the latter fail to comply with its obligations under the MOA,
it will pay interest at the prevailing market interest rate from the date of advance until full payment; and that there was a complaint
filed with the Bangko Sentral ng Pilipinas against RCBC by Mr. Felipe Remollo questioning the Piedras deal. [TSN 28 February
1997; 26 June 1997; 27 June 1997; 04 July 1997]

JOSE REVILLA testified that he and Amb. Yuchengco were long time friends, where he (Revilla) worked for him
(Yuchengco) for thirty-two (32) years in his (Yuchengco) credit card company Industrial Finance Corporation Credit Cards; that
knowing Amb. Yuchengco for a considerable period of time, he does not believe the truth of the contents of the subject articles; that
plaintiff Yuchengco appeared distressed when he joked about the subject articles; that other people approached him to ask whether
the subject articles are true [TSN 25 August 1997].

xxxx

DEFENDANTS EVIDENCE

On the other hand, defendants Zaragoza, Gatdula, Cabrera and Valino substantially testified on the following matters:

GERRY ZARAGOZA testified that he was the Managing Editor of Manila Chronicle in charge of the national and political
news; that defendant San Juan was the other Managing Editor in charge of the lifestyle section; that a story conference is conducted
everyday where the articles, including the pages where they will appear, are discussed; that the editor-in-chief (defendant Cruz),
executive editor (defendant Tolentino) and deputy editor (defendant Cabrera) were the ones responsible for the decisions of the
story conference relative to the printing of the newspaper; that he was not involved in the writing and editing of the subject articles;
that Exhibits A to D are classified as business news; that columns, specifically Exhibits E and F are not discussed during story
conferences; and that Exhibit G, which appeared in the Money Section did not pass thru him.
 On cross-examination, defendant Zaragoza testified that except for the columns, Exhibits A to D and Exhibit G are
considered hard news; that he handled the hard news, while defendant San Juan handled the soft news; and that defendant Valino
was the business editor in charge of the business section (TSN 22 July 1998; 23 September 1998]

DONNABELLE GATDULA claimed that she was a correspondent for Manila Chronicle assigned to the Securities and
Exchange Commission (SEC) beat; that she had no participation in the writing or publication of Exhibits A to C and G to E; that she
attended the hearing conducted by the SEC and interviewed the two lawyers of RCBC and SEC Chairman Rosario Lopez regarding
the Oriental Petroleum case; that her name appears as a tag line in Exhibit D, because she only wrote part of the story; and that she
did not write the entire article (Exhibit D) as some of the statements therein were added by the editor/s; and that she did not discuss
Exhibit D with any of the editors.

On cross-examination, defendant Gatdula testified that she does not have a copy of the original article which she wrote;
that she read Exhibit D after it was published; that she did not compare her original story with Exhibit D nor question the authority of
the editor to edit her story; and that she agreed to put her name on Exhibit D. (TSN 23 September 1998; 05 October 1998).

NOEL CABRERA contended that after having gone through the subject articles, he believes that the news stories and
commentaries were fair and that those who wrote the same followed the proper standards; that as regard the contents of Exhibits E
and F, the opinion of Mr. Raul Valino, as written in the said articles, were valid and based on documentary facts; as to Exhibit D,
pertaining to the article of Ms. Donnabelle Gatdula, she based her article on documents pertaining to the Oriental transaction, other
documents, as well as interviews; that at the time the subject articles were written, Amb. Yuchengco was a public figure, being a
very prominent businessman with vast interest in banks and other businesses; that during the year 1993, the word crony was more
or less accepted to mean as a big businessman or close associate of the late President Marcos, and its use in the column was
meant only to supply the perspective as to the figure or subject involved in the news story, and there is thus no malice or derogatory
intent when the same was used.

On cross-examination, defendant Cabrera testified that defendant Coyiuto is one of the owners of Manila Chronicle; and
that he only saw the records of Exhibits 8 to 10 and 16 to 20 after the publication of Exhibits A to G (TSN 21 April 1999; 28 April
1999 05 May 1999; 10 May 1999).

RAUL VALINO stated that he was the Acting Business Manager and later Managing Editor and Business Editor-in-Chief
of Manila Chronicle; that after having consulted several dictionaries as to the meaning of the word crony, he did not come across a
definition describing the word to mean someone who is a recipient of any undeserving or special favor from anyone, that it merely
refers to someone who is a friend or a special friend; there was no mention whatsoever in the subject article that Amb. Yuchengco
was being accused of fronting for the late President Marcos (referring to par. 2.3.2 of the complaint); that nowhere in the said
paragraph was Amb. Yuchengco accused of having acted as a front to facilitate the acquisition of a prohibited interest in a private
corporation by a public official while occupying a public office; that nowhere in the article was Amb. Yuchengco accused of being
directly or indirectly involved in unsound business practices (referring to par. 2.4 of the complaint); that whatever imputation of ill-will
in par. 2.4.1 of the complaint was only in plaintiffs mind; and as regards par. 2.6 of the complaint, that he was merely reporting on
what transpired at the picket line and what the striking employees answered to him; and that he did not state in his columns
(Exhibits E and F) that plaintiff Yuchengco violated banking laws. [TSN 23 February 2000][3]

On 8 November 2002, the RTC rendered its Decision in favor of herein petitioner Alfonso T. Yuchengco, disposing of the case as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. On the First Cause of Action, ordering defendants Chronicle Publishing, Neil H. Cruz, Ernesto Tolentino, Noel Cabrera,
Thelma San Juan, Gerry Zaragoza, Donna Gatdula, Raul Valino and Rodney Diola to pay plaintiff Yuchengco, jointly and severally:

a. the amount of Ten Million Pesos (P10,000,000.00) as moral damages; and

b. the amount of Ten Million Pesos (P10,000,000.00) as exemplary damages;

2. On the Second Cause of Action, ordering defendants Roberto Coyiuto, Jr. and Chronicle Publishing to pay plaintiff
Yuchengco, jointly and severally:

a. the amount of Fifty Million Pesos (P50,000,000.00) as moral damages; and

 b. the amount of Thirty Million Pesos (P30,000,000.00) as exemplary damages;

3. On the Third Cause of Action, ordering all defendants to pay plaintiff Yuchengco, jointly and severally, the amount of
One Million Pesos (P1,000,000.00) as attorneys fee and legal costs.[4]

The respondents, namely the Manila Chronicle Publishing Corporation, Neal H. Cruz, Ernesto Tolentino, Noel Cabrera, Thelma San Juan,
Gerry Zaragoza, Donna Gatdula, Raul Valino, Rodney P. Diola, and Roberto Coyiuto, Jr. appealed to the Court of Appeals. The appeal was docketed as
CA-G.R. CV No. 76995 and was raffled to the Fifth Division.

On 18 March 2008, the Court of Appeals promulgated its Decision affirming the RTC Decision:

WHEREFORE, in consideration of the foregoing premises, judgment is hereby rendered DISMISSING the appeals of
defendants-appellants and AFFIRMING the decision dated November 8, 2002 of the trial court IN TOTO.[5]

Respondents filed a Motion for Reconsideration. On 28 August 2008, the Court of Appeals reversed itself in an Amended Decision:

WHEREFORE, the appeal is GRANTED. The Decision of this Court dated March 18, 2008 is RECONSIDERED and SET
ASIDE. The decision of the court a quo dated November 8, 2002 is REVERSED and SET ASIDE. The Amended Complaint for
Damages against the defendants-appellants is DISMISSED. No pronouncement as to costs.

Hence, this Petition for Review on Certiorari, where petitioner puts forth the following Assignments of Error:

A. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN RULING THAT THE CASE
OF ARTURO BORJAL, ET AL. V. COURT OF APPEALS, ET AL. CITED BY RESPONDENTS IN THEIR MOTION FOR
RECONSIDERATION WARRANTED THE REVERSAL OF THE CA DECISION DATED MARCH 18, 2008.

B. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN RULING THAT THE
SUBJECT ARTICLES IN THE COMPLAINT FALL WITHIN THE CONCEPT OF PRIVILEGED COMMUNICATION.

C. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN RULING THAT
PETITIONER IS A PUBLIC OFFICIAL OR PUBLIC FIGURE.[6]

Libel is defined in Article 353 of the Revised Penal Code, which provides:

Art. 353. Definition of Libel. A libel is a 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.
 Based on this definition, this Court has held that four elements constitute the crime of libel, namely (a) defamatory imputation tending to cause
dishonor, discredit or contempt; (b) malice, either in law or in fact; (c) publication; and (d) identifiability of the person defamed. [7]

Despite being defined in the Revised Penal Code, libel can also be instituted, like in the case at bar, as a purely civil action, the cause of
action for which is provided by Article 33 of the Civil Code, which provides:

Article 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party.Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.

The above elements of libel were adopted as well in a purely civil action for damages. As held by this Court in GMA Network, Inc. v. Bustos[8]:

An award of damages under the premises presupposes the commission of an act amounting to defamatory imputation or
libel, which, in turn, presupposes malice. Libel is the public and malicious imputation to another of a discreditable act or condition
tending to cause the dishonor, discredit, or contempt of a natural or juridical person. Liability for libel attaches present the following
elements: (a) an allegation or imputation of a discreditable act or condition concerning another; (b) publication of the imputation; (c)
identity of the person defamed; and (d) existence of malice.

Of these four elements, the most apparent in the case at bar would be the publication of the alleged imputation. Libel is published not only
when it is widely circulated, but also when it is made known or brought to the attention or notice of another person other than its author and the offended
party.[9] The circulation of an allegedly libelous matter in a newspaper is certainly sufficient publication. We are thus left with the determination of the
existence of the three remaining elements of libel, namely: (1) the defamatory imputation; (2) the identity of the person defamed; and (3) the existence of
malice.

Defamatory Imputation

Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and
malicious statements. It is that which tends to injure reputation or to diminish esteem, respect, goodwill or confidence in the plaintiff, or to excite
derogatory feelings or opinions about the plaintiff. It is the publication of anything that is injurious to the good name or reputation of another or tends to
bring him into disrepute.[10] In determining whether certain utterances are defamatory, the words used are to be construed in their entirety and taken in
their plain, natural and ordinary meaning, as they would naturally be understood by persons hearing (or reading, as in libel) them, unless it appears that
they were used and understood in another sense.[11]

In order to fully appreciate whether the subject articles are, in fact, defamatory, an analysis thereof is in order. The following are what have
been referred to as the subject articles:

Manila Chronicle Issue Date Title Exhibit

(Author)

10 November 1993 Yuchengko joins forces with Kokoy A, A-1 to A-5

(no by-line)
12 November 1993 RCBC probed for violating CB rules B, B-1 to B-2

(no by-line)

15 November 1993 RCBC called to SEC; subtitled C, C-1 to C-3

Yuchengco Bank defies government
(no by-line) order

16 November 1993 Alcorn, RCBC execs own guilt D, D-1 to D-4

(Donna Gatdula)

22 November 1993 Bank runs and RCBC free loans E, E-1 to E-2

(Raul Valino)

23 November 1993 RCBC case bugs Bangko Sentral F, F-1 to F-3

(Raul Valino)

5 December 1993 The Battle for Oriental G, G-1 to G-4

(Rodney P. Diola)

In two of the subject articles, respondents allegedly accused and labeled Yuchengco as a Marcos crony, who took advantage of his
relationship with the former President to gain unwarranted benefits:

Yuchengco joins forces with Kokoy[12]

Alfonso Yuchengco, a Marcos crony who wants to takeover the ownership and management of the highly profitable
Oriental Petroleum Minerals Corp. (OMPC), has tied up with Marcos brother-in-law Benjamin Kokoy Romualdez through two of his
sons, records at the securities and Exchange Commission (SEC) showed yesterday.

Kokoys two sons, Benjamin Philip Gomez Romualdez, 32, and Ferdinand Martin G. Romualdez, 29, are now members of
the board of the debt-ridden and heavily losing Benguet Corp., a company taken over by Marcos during his dictatorship, but which
was sequestered at the start of President Aquinos term.

xxxx

Observers said they believed the elections of the Romualdez sons officially confirmed suspicions that the Marcos and
Romualdez clans really owned Benguet.

Benguets former president, Jaime Ongpin, employed by the company for 10 years before he was named finance
secretary by then President Aquino, committed suicide after being accused of being a Marcos-Romualdez crony.

Yuchengco Bank under CB probe[13]

xxxx

The official said the case was recently brought to Bangko Sentrals attention by an RCBC creditor who felt he was being
cheated by the bank through interest-free loans granted to related interests.
 Under the interest-free loan scheme, Yuchengco was able to own OMPC shares of Piedras since they were the same
shares RCBC financed and which were turned over to the bank as payment for the loan.

The Central Bank official said that Bangko Sentral is now determining whether RCBC violated the rule on loans to
directors, officers, stockholders and related interests (DOSRI).

Yuchengco is both a director (chairman) officer, stockholder, and a related interest of RCBC.

xxxx

Violating the DOSRI rule is a criminal offense. The Bangko Sentral official stressed. I believe that that is tantamount, not
only to cheating the depositor, but also robbing the bank of its clients money.

If Bangko Sentral does not act decisively on this matter, the official asked what will prevent the other banks from resorting
to this kind of transactions to enrich their owners and enable them to acquire shares of stock from other companies?

The interest-free loan controversy also involves Traders Royal Bank (TRB), a sequestered bank, owned by Roberto
Benedicto, a Marcos crony.

xxxx

The deal could be from one crony to another since Yuchengco is very much associated with the Marcoses and the
Romualdezes, a source opined.

Yuchengco owns Benguet Corp., which is heavily losing since he joined the Company as Chairman in 1989.

xxxx

Since Benguet is encountering all kinds of financial problems, losses and overdue debts, observers say they fear that
Oriental may also suffer the same fate when and should Yuchengco and his partners assume management of OMPC.

Already, it was noted the Oriental shares sold on the stock market are weakening, and stock observers say this could be
attributed to the planned entry into the company of Yuchengco, Leonardo Siguion-Reyna and their minority partners.

In another of the subject articles, respondents allegedly insinuated that Yuchengco induced others to disobey the lawful orders of the
Securities and Exchange Commission (SEC):

Alcorn, RCBC execs own guilt[14]

Two officials of Alcorn Petroleum and Minerals Corporation (AMPC) and Rizal Commercial Banking Corporation (RCBC)
admitted before the Securities and Exchange Commission (SEC) yesterday that they ignored the SEC order commanding them to
process all Alcorn shares in the name of R. Coyiuto Securities Inc. and its investor clients such as Oriental Petroleum and Minerals
Corporation (OMPC).

xxxx
 RCBC is owned by Alfonso Yuchengco, chairman of the debt-ridden and heavily-losing Benguet Corp. He also owns
Great Pacific Life Insurance Co., whose employees are on strike because of the companys refusal to grant them better salaries and
benefits.

xxxx

SEC insiders said that while Monreal and Ricalde should be punished for disobeying a lawful order from the SEC, people
who masterminded the APMC order should also be penalized once proven guilty.

xxxx

Some observers said the APMC order to RCBC could be a ploy to prevent Robert Coyiuto, Jr., chairman and president of
OPMC, from retaining his majority control of Oriental, and a scheme to put on the board members of the Yuchengco company.

In fact, when Yuchengco created his own OPMC board of directors, he appointed Ricalde as corporate secretary, OPMC
officials pointed out.

In our opinion, observers following the OPMC developments stated, this is a clear and simple case of criminal conspiracy
whose perpetrators must be meted the harshest punishment to prevent corporate thieves from making a mockery of the law and
from illegally taking over corporations which they do not own in the first place.

Yuchengco further presented the following articles which allegedly accused him of inducing Rizal Commercial Banking Corporation (RCBC) to
violate the provisions of the General Banking Act on Directors, Officers, stockholders, and Related Interest (DOSRI) loans:

Bank runs and RCBC free loans[15]

The Bank runs that devastated the economy in the recent past were, first and foremost, instigated by rumors that bank
owners were, themselves, using the publics money to promote their own businesses and interests in violation of Central Bank rules
and regulations.

xxxx

Now here comes Rizal Commercial Banking Corporation (RCBC) being charged with engaging in unsound banking by
lending an interest-free loan of P101 million to one company, Piedras Petroleum Corporation, which Marcos crony Roberto
Benedicto had surrendered to the Presidential Commission on Good Government (PCGG).

xxxx

What would happen if all the other banks resort to this kind of lending activity, giving away loans without interest? The
entire banking system would certainly be compromised.

The owners or RCBC, therefore, should not be too liberal with their depositors money. They should also consider what
fatal effects such a practice could inflict on the very system where RCBC operates. The country, at this time, cannot afford another
series of bank runs, nor a run at RCBC.

RCBC case bugs Bangko Sentral[16]

 xxxx

The P101 million interest-free loan to Piedras is of national interest for not just one reason alone.

First, the money involved came from the depositors, and not from the pockets of Yuchengco.

Second, banking rules dictate that a bank must be prudent in lending out its clients money, so that its financial viability
must never be put in question.

Third, the money lent to a borrower must never end up in the pocket of the owner of the bank.

Fourth, such a practice could lead to a bank run, which the economy cannot afford at this time, even if the run is confined
to just one bank.

Yuchengco further claims that the following article, in labeling him as a corporate raider, implies that he is seeking to profit from something he
did not work for:

The Battle for Oriental[17]

Ledesma says Coyiuto will not wilt from Yuchengcos fabled financial power. Robert has a lot of friends that will help him
fend off a raider like Yuchengco, says Ledesma.

xxxx

Ledesma of OPMC says that even if Coyiuto loses in the bid, hell still remain a very significant player in OPMC given his
substantial personal holdings and proxies in the company.Coyiutos investment in OPMC is now valued at more than a billion pesos
compared to the Yuchengco block which, the Coyiuto group points out, has only minimal investments.

Thats our moral ascendancy over their group. Coyiuto virtually made Oriental what it is today unlike Yuchengco who is
just getting into the act now because Oriental has become an attractive cash cow says Ledesma.

War of Families

The fight for control of Oriental Petroleum gains particular poignancy given the long history of feuding between the
families of Yuchengco and Coyiuto. Their families were bitter rivals in the insurance business way back in the seventies. The
Yuchengcos own the Malayan Group of Insurance Companies while the Coyiutos used to control Pioneer Insurance. That rivalry
seems to have come full circle with their battle in Oriental Petroleum.

Pomento says the best arrangement would have been a modus vivendi between the two groups to stop their quarrel and
work instead for the interest of the company. But given the bad blood that exists between the two families, that might be a difficult
proposition, he says.

The trial court and the Court of Appeals are in agreement that the above articles contain defamatory imputations. Even the Amended Decision
of the Court of Appeals, wherein the appellate court reversed itself and held that respondents were not liable for damages, did not modify its earlier
ruling affirming the defamatory character of the imputations in the above articles. The Court of Appeals merely reversed itself on account of the allegedly
privileged nature of the articles, which goes into the element of malice.Malice, as an element of libel, and the defenses affecting the existence of the
same shall be discussed later.

In arguing that the subject articles are not really derogatory, respondent Cabrera explains that the word crony was more or less accepted to
describe a big businessman or close associate of the late President Marcos, and its use in the column was meant only to supply the perspective as to
the figure or subject involved in the news story. Respondent Valino further claimed that after consulting several dictionaries as to the meaning of the
word crony, he did not come across a definition describing the word to mean someone who is a recipient of any undeserving or special favor from
anyone.

We are not swayed by the explanations of respondents Cabrera and Valino. In determining the defamatory character of words used, the
explanation of the respondent should not prevail over what the utterances (or writing) convey to an ordinary listener (or reader).[18] Furthermore, as held
by this Court in United States v. Sotto[19]:

[F]or the purpose of determining the meaning of any publication alleged to be libelous that construction must be adopted which will
give to the matter such a meaning as is natural and obvious in the plain and ordinary sense in which the public would naturally
understand what was uttered. The published matter alleged to be libelous must be construed as a whole. In applying these rules to
the language of an alleged libel, the court will disregard any subtle or ingenious explanation offered by the publisher on
being called to account. The whole question being the effect the publication had upon the minds of the readers, and they
not having been assisted by the offered explanation in reading the article, it comes too late to have the effect of removing
the sting, if any there be, from the word used in the publication. (Emphasis supplied.)

In finding that the phrase Marcos crony is derogatory, the trial court took judicial notice of the fact that the said phrase, as understood in
Philippine context, refers to an individual who was the recipient of special and/or undeserved favors from the late President Marcos due to a special
closeness to the latter. This finding, which was upheld by the Court of Appeals in its original Decision and was not tackled in the Amended Decision, is
even supported by one of the subject articles. In particular, the 10 November 1993article marked as Exhibit A mentioned that Benguets former president,
Jaime Ongpin, committed suicide after being accused of being a Marcos-Romualdez crony.[20] This statement highlights the disgrace respondents
wanted to associate with the term crony, which was used to describe Yuchengco in the very same article.

Even a cursory reading of the subject articles would show the intention of the writers to injure the reputation, credit and virtue of Yuchengco
and expose him to public hatred, discredit, contempt and ridicule. The indirect manner in which the articles attributed the insults to Yuchengco (e.g., the
money involved came from depositors, and not from Yuchengco) does not lessen the culpability of the writers and publishers thereof, but instead makes
the defamatory imputations even more effective. Words calculated to induce suspicion are sometimes more effective to destroy reputation than false
charges directly made. Ironical and metaphorical language is a favored vehicle for slander. [21]

In sum, this Court upholds the ruling of the trial court and the Court of Appeals that the subject articles contain defamatory imputations. All of
the following imputations: (1) the labeling of Yuchengco as a Marcos crony, who took advantage of his relationship with the former President to gain
unwarranted benefits; (2) the insinuations that Yuchengco induced others to disobey the lawful orders of SEC; (3) the portrayal of Yuchengco as an
unfair and uncaring employer due to the strike staged by the employees of Grepalife; (4) the accusation that he induced RCBC to violate the provisions
of the General Banking Act on DOSRI loans; and (5) the tagging of Yuchengco as a corporate raider seeking to profit from something he did not work
for, all exposed Yuchengco to public contempt and ridicule, for they imputed to him a condition that was dishonorable.

Identification

Defamatory words must refer to an ascertained or ascertainable person, and that person must be the plaintiff. Statements are not libelous
unless they refer to an ascertained or ascertainable person.[22] However, the obnoxious writing need not mention the libeled party by name. It is sufficient
if it is shown that the offended party is the person meant or alluded to.[23]
 In the case at bar, all but one of the subject articles explicitly mention the name of petitioner Yuchengco. The lone article, which does not
mention Yuchengco at all, Bank runs & RCBC free loans,[24] nevertheless chided the owners of RCBC:

The owners or RCBC, therefore, should not be too liberal with their depositors money. They should also consider what
fatal effects such a practice could inflict on the very system where RCBC operates. The country, at this time, cannot afford another
series of bank runs, nor a run at RCBC.[25]

Identifying Yuchengco in said article by name was, however, not necessary, since the other subject articles, published a few days before and
after this one, had already referred to Yuchengco as the owner of RCBC, sometimes explicitly (Benguet started to bleed in 1989, the year Yuchengco,
who owns Rizal Commercial Banking Corp. [RCBC], took over as chairman of the company [26]), and sometimes implicitly (the money involved came from
depositors, and not from Yuchengco). While the defamation of a large group does not give rise to a cause of action on the part of an individual, this is
subject to exception when it can be shown that he is the target of the defamatory matter. [27] This Court therefore finds that Yuchengco was clearly
identified as the libeled party in the subject defamatory imputations.

Malice

Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an
intention to do ulterior and unjustifiable harm.[28] It is present when it is shown that the author of the libelous remarks made such remarks with knowledge
that it was false or with reckless disregard as to the truth or falsity thereof. [29]

Malice, however, does not necessarily have to be proven. There are two types of malice malice in law and malice in fact. [30] Malice in law is a
presumption of law. It dispenses with the proof of malice when words that raise the presumption are shown to have been uttered. It is also known as
constructive malice, legal malice, or implied malice. [31] On the other hand, malice in fact is a positive desire and intention to annoy and injure. It may
denote that the defendant was actuated by ill will or personal spite. It is also called express malice, actual malice, real malice, true malice, or particular
malice.[32]

In this jurisdiction, malice in law is provided in Article 354 of the Revised Penal Code, which also enumerates exceptions thereto:

Art. 354. Requirement of 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 not 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.

There is, thus, a presumption of malice in the case of every defamatory imputation, where there is no showing of a good intention or justifiable
motive for making such imputation.
 The exceptions provided in Article 354 are also known as qualifiedly privileged communications. The enumeration under said article is,
however, not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise
privileged.[33] They are known as qualifiedly privileged communications, since they are merely exceptions to the general rule requiring proof of actual
malice in order that a defamatory imputation may be held actionable. In other words, defamatory imputations written or uttered during any of the three
classes of qualifiedly privileged communications enumerated above (1) a private communication made by any person to another in the performance of
any legal, moral or social duty; (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 not 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; and (3) fair commentaries on matters of public interest may still be considered actionable if actual
malice is proven. This is in contrast with absolutely privileged communications, wherein the imputations are not actionable, even if attended by
actual malice:

A communication is said to be absolutely privileged when it is not actionable, even if its author has acted in bad faith. This class
includes statements made by members of Congress in the discharge of their functions as such, official communications made by
public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their
pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions
propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and
the answers are responsive or pertinent to the questions propounded to said witnesses. Upon the other hand, conditionally or
qualifiedly privileged communications are those which, although containing defamatory imputations, would not be actionable unless
made with malice or bad faith.[34]

In the case at bar, both the trial court and the Court of Appeals found that the publication of the subject articles was attended by actual malice:

In the instant case, there is preponderance of evidence showing that there exists malice in fact in the writing and
publication of the subject libelous articles.

As correctly found by the trial court, [petitioner] was able to show that [respondents] were animated by a desire to
inflict unjustifiable harm on his reputation as shown by the timing and frequency of the publication of the defamatory
articles. Further, as previously stated, [respondents] failed to show that they had any good intention and justifiable motive for
composing and publishing the vicious and malicious accusations against [petitioner].

Moreover, [respondents] published or caused the publication of the subject defamatory articles with reckless disregard as
to the truth or falsity thereof. As previously stated, there is no proof that the contents of the subject articles are true or that the
respondents exercised a reasonable degree of care before publishing the same. [Respondents] failed to present evidence
showing that they verified the truth of any of the subject articles, especially in light of the categorical denial by [petitioner]
of the accusations made against him.

[Respondents] did not exercise reasonable degree of care or good faith efforts to arrive at the truth before publishing the
subject defamatory articles. [Respondents] did not present any competent evidence to establish the truth of their allegations against
[petitioner]. There was no showing that [respondents] made any attempt to talk to [petitioner] to verify the statements
contained in the defamatory articles, especially considering the gravity of the accusations made against [petitioner]. At the
very least, [respondents] should have exercised efforts to talk to [petitioner] to clarify the issues and get his side. [Respondents]
failure to verify the truth of the information from [petitioner] himself is in itself an evidence of their lack of bona fide efforts to verify
the accuracy of her information.

The incessant publication of the defamatory articles attacking the honor and reputation of [petitioner] is also proof of
[respondents] malicious scheme to malign and defame the name, honor and reputation of [petitioner]. As earlier pointed out, in a
span of one (1) month, [respondents] wrote and published and/or caused the publication of seven (7) libelous articles
against [petitioner] attacking his honor and reputation as a distinguished businessman, philanthropist, his political
inclination, and as an employer in his insurance company. In fact, the presence of malice is made more evident by
[respondents] baseless and uncalled for attack on the person of [petitioner] as an employer. As aptly noted by the trial court in the
assailed Decision:

Also in one of the articles, herein plaintiff was portrayed as an unfair and uncaring employer due to
the strike staged by the employees of Grepalife suggesting that it was the [petitioner] who was the cause, and
of insinuating that if [petitioners] group takes over control of Oriental, it would experience the same labor
problem as in Grepalife. The Court finds that [respondents] failed to render an unbiased and fair report as to the
real cause of the strike except to lay the blame to [petitioner], without stating, much less describing, his
participation thereon, knowing fully well that Grepalife is an entity distinct from the plaintiff. In other words, the
labor policies implemented by Grepalife as regards its employees are obviously not that of Yuchengco.
 Such baseless and malicious accusation of [respondents] on [petitioner] only proves the intention of the
[respondents] in publishing the defamatory articles was not to present an unbiased report on current issues but to launch
a personal attack on the very person of [petitioner].

As earlier explained, as correctly found by the trial court, even the timing of the publication of these subject articles is
highly suspicious inasmuch as the subject libelous articles came out in the Manila Chronicle, a newspaper owned and
under the control of [respondent] Coyiuto, around November to December of 1993, a couple of months prior to the January
stockholders meeting of Oriental Corporation. From this, it is logical to conclude that the publication of the subject defamatory
articles defaming the good name and reputation of [petitioner] is but a part of [a] grand scheme to create a negative image of
[petitioner] so as to negatively affect [petitioners] credibility to the public, more particularly, to the then stockholders of Oriental
Corporation. Worth noting also is the fact that the subject articles did not only portray [petitioner] in a bad light. Curiously, in these
articles, [respondent] Coyiuto, a known rival of [petitioner], was portrayed as the underdog, the David and [petitioner] as
the Goliath in their battle for control over Oriental Corporation. This does not escape the Courts attention.

These circumstances clearly indicate the presence of actual malice on the part of [respondents] in the publication of the
subject libelous articles.[35] (Emphases supplied.)

When the Court of Appeals granted the Motion for Reconsideration, it did not touch upon its earlier finding of actual malice on the part of
respondents in publishing the subject articles. Instead, the Court of Appeals merely held that the subject articles were fair commentaries on matters of
public interest, and thus fell within the scope of the third type of qualifiedly privileged communications.

This was a glaring error on the part of the Court of Appeals. As discussed above, whereas there is an absolute bar to an action in the case of
absolutely privileged communication, the same is not true with respect to qualifiedly privileged communication, wherein the law merely raises a prima
facie presumption in favor of the occasion. In the former, the freedom from liability is absolute, regardless of the existence of actual malice, as contrasted
with the freedom in the latter, where it is conditioned on the want or absence of actual malice. Conditionally or qualifiedly privileged communications are
actionable when made with actual malice.[36]

When malice in fact is proven, assertions and proofs that the libelous articles are qualifiedly privileged communications are futile, since being
qualifiedly privileged communications merely prevents the presumption of malice from attaching to a defamatory imputation.

Neither is there any reason for this Court to reverse the findings of the trial court and the Court of Appeals that there was actual malice on the
part of the respondents. As held by the courts a quo, Yuchengco was able to show by the attendant circumstances that respondents were animated by a
desire to inflict unjustifiable harm on his reputation, as shown by the timing and frequency of the publication of the defamatory articles. The portrayal of
then Chronicle Publishing Chairman Coyiuto as an underdog and his rival Yuchengco as the greedy Goliath in their battle for control over Oriental
Corporation, taken with the timing of the publication of these subject articles a couple of months prior to the January stockholders meeting of Oriental
Corporation, clearly indicate that the articles constituted an orchestrated attack to undermine the reputation of Yuchengco.Furthermore, respondents
were shown to have acted with reckless disregard as to the truth or falsity of the articles they published, when they were unable to rebut the categorical
denial by Yuchengco of the accusations made against him, and his allegation that he was not approached by respondents for his side of the stories
before the publication thereof.Respondents failure to present evidence showing that they verified the truth of any of the subject articles is fatal to their
cause. In In re: Emil P. Jurado,[37] this Court ruled that categorical denials of the truth of allegations in a publication place the burden upon the
party publishing it, either of proving the truth of the imputations or of showing that the same was an honest mistake or error committed
despite good efforts to arrive at the truth. There is actual malice when there is either (1) knowledge of the publications falsity; or (2) reckless
disregard of whether the contents of the publication were false or not.[38] Failure to even get the side of Yuchengco in the published articles clearly
constituted reckless disregard of the truth or falsity of said articles.

Finally, even if we assume for the sake of argument that actual malice was not proven in the case at bar, we nevertheless cannot adhere to
the finding of the Court of Appeals in the Amended Decision that the subject articles were fair commentaries on matters of public interest, and thus fell
within the scope of the third type of qualifiedly privileged communications.
 In Philippine Journalists, Inc. (Peoples Journal) v. Theonen,[39] this Court adopted the pronouncement in the United States Decision in Gertz v.
Robert Welsch, Inc.[40]that, in order to be considered as fair commentaries on matters of public interest, the individual to whom the defamatory articles
were imputed should either be a public officer or a public figure:

In Borjal v. Court of Appeals, we stated that the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public interest are likewise privileged. We stated that the doctrine of fair
commentaries means that while in general every discreditable imputation publicly made is deemed false, because every man is
presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the
discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such
discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a
false supposition.

Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public
official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch, Inc., [418
U. S. 323 (1974)] that a newspaper or broadcaster publishing defamatory falsehoods about an individual who is neither a
public official nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the
falsehood arose in a discussion of public interest.(Emphasis supplied.)

Thus, in trying to prove that the subject articles delved on matters concerning public interest, the Court of Appeals insisted that Yuchengco
was a public official or public figure, who must not be too thin-skinned with reference to comment upon his official acts. [41] The Court of Appeals then
noted that Yuchengco was, at the time of the Amended Decision, appointed as a Presidential Adviser on Foreign Affairs with Cabinet rank, and
proceeded to enumerate[42] the public positions held by Yuchengco through the years.

However, an examination of the subject articles reveals that the allegations therein pertain to Yuchengcos private business endeavors and do
not refer to his duties, functions and responsibilities as a Philippine Ambassador to China and Japan, or to any of the other public positions he
occupied. A topic or story should not be considered a matter of public interest by the mere fact that the person involved is a public officer, unless the said
topic or story relates to his functions as such. Assuming a public office is not tantamount to completely abdicating ones right to privacy. Therefore, for the
purpose of determining whether or not a topic is a matter of public interest, Yuchengco cannot be considered a public officer.

Neither is Yuchengco a public figure. The above case Philippine Journalists continues to cite the US case Gertz in describing who is a public
figure:

More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies
in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Third, this
would impose an additional difficulty on trial court judges to decide which publications address issues of general interest and which
do not. Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the
assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory
falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or
assumed an influential role in ordering society. (Curtis Publishing Co. v. Butts, 388 U.S., at 164) He has relinquished no part of his
interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury
inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public
figures; they are also more deserving of recovery.[43] (Emphasis supplied.)

The records in the case at bar do not disclose any instance wherein Yuchengco had voluntarily thrust himself to the forefront of particular
public controversies in order to influence the resolution of the issues involved. He cannot, therefore, be considered a public figure. Since Yuchengco, the
person defamed in the subject articles, is neither as public officer nor a public figure, said articles cannot be considered as qualifiedly privileged
communications even if they deal with matters of public concern.

In view of the foregoing, this Court is constrained to grant the instant Petition and reinstate the Decision of the trial court, as previously
affirmed by the Court of Appeals in its original Decision. This Court, however, finds the award of damages in the total amount of One Hundred Million
Pesos by the trial court to be rather excessive given the circumstances. This Court, thus, further resolves to reduce the award of damages, as follows:
 1. The damages for which Chronicle Publishing, Neil H. Cruz, Ernesto Tolentino, Noel Cabrera, Thelma San Juan, Gerry Zaragoza, Donna
Gatdula, Raul Valino and Rodney Diola shall be jointly and severally liable under the first cause of action shall be reduced as follows:

a. The amount of moral damages shall be reduced from Ten Million Pesos (P10,000,000.00) to Two Million Pesos
(P2,000,000.00); and

b. The amount of exemplary damages shall be reduced from Ten Million Pesos (P10,000,000.00) to Five Hundred Thousand
Pesos (P500,000.00);

2. The damages for which Roberto Coyuito, Jr. and Chronicle Publishing shall be jointly and severally liable under the second cause of action
shall be reduced as follows:

a. The amount of moral damages shall be reduced from Fifty Million Pesos (P50,000,000.00) to Twenty-Five Million Pesos
(P25,000,000.00); and

b. The amount of exemplary damages shall be reduced from Thirty Million Pesos (P30,000,000.00) Ten Million Pesos
(P10,000,000.00).

WHEREFORE, the Petition is PARTIALLY GRANTED. The Amended Decision of the Court of Appeals in CA-G.R. CV No. 76995 dated 28
August 2008, which reversed on Motion for Reconsideration the 18 March 2008 Decision of the same Court is hereby REVERSED and SET ASIDE. The
Decision of the Regional Trial Court ofMakati City in Civil Case No. 94-1114 dated 8 November 2002 finding herein respondents liable for damages, is
hereby REINSTATED, but shall be MODIFIED to read as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

1. On the First Cause of Action, ordering defendants Chronicle Publishing, Neil H. Cruz, Ernesto Tolentino, Noel Cabrera,
Thelma San Juan, Gerry Zaragoza, Donna Gatdula, Raul Valino and Rodney Diola to pay plaintiff Yuchengco, jointly and severally:

a. the amount of Two Million Pesos (P2,000,000.00) as moral damages; and

b. the amount of Five Hundred Thousand Pesos (P500,000.00) as exemplary damages;

2. On the Second Cause of Action, ordering defendants Roberto Coyuito, Jr. and Chronicle Publishing to pay plaintiff
Yuchengco, jointly and severally:

a. the amount of Twenty-Five Million Pesos (P25,000,000.00) as moral damages; and

b. the amount of Ten Million Pesos (P10,000,000.00) as exemplary damages;

3. On the Third Cause of Action, ordering all defendants to pay plaintiff Yuchengco, jointly and severally, the amount of
One Million Pesos (P1,000,000.00) as attorneys fee and legal costs.
 Costs against respondents.

SO ORDERED.

G.R. No. 194578 February 13, 2013

PHILIP SIGFRID A. FORTUN, Petitioner,

vs.
PRIMA JESUSA B. QUINSAYAS, MA. GEMMA OQUENDO, DENNIS AYON, NENITA OQUENDO, ESMAEL MANGUDADATU, JOSE PAVIA,
MELINDA QUINTOS DE JESUS, REYNALDO HULOG, REDMOND BATARIO, MALOU MANGAHAS, DANILO GOZO, GMA NETWORK INC.,
through its new editors Raffy Jimenez and Victor Sollorano, SOPHIA DEDACE, ABS-CBN CORPORATION, through the Head of its News
Group, Maria Ressa, CECILIA VICTORIA OREÑA-DRILON, PHILIPPINE DAILY INQUIRER, INC. represented by its Editor-in-Chief Letty Jimenez
Magsanoc, TETCH TORRES, PHILIPPINE STAR represented by its Editor-in-Chief Isaac Belmonte, and EDU PUNAY, Respondents.

DECISION

CARPIO, J.:

The Case

Before the Court is a petition for Contempt filed by Atty. Philip Sigfrid A. Fortun (petitioner) against Atty. Prima Jesusa B. Quinsayas (Atty. Quinsayas),
Ma. Gemma Oquendo (Gemma), Dennis Ayon (Ayon), Nenita Oquendo (Nenita), Esmael Mangudadatu (Mangudadatu), Jose Pavia (Pavia), Melinda
Quintos De Jesus (De Jesus), Reynaldo Hulog (Hulog), Redmond Batario (Batario), Malou Mangahas (Mangahas), and Danilo Gozo (Gozo). Atty.
Quinsayas and the other respondents, who are not from the media, are referred to in this case as Atty. Quinsayas, et al. Petitioner also named as
respondents GMA Network, Inc. (GMA Network) through its news editors Raffy Jimenez and Victor Sollorano, Sophia Dedace (Dedace), ABS-CBN
Corporation (ABS-CBN) through the Head of its News Group Maria Ressa (Ressa), Cecilia Victoria Oreña-Drilon (Drilon), Philippine Daily Inquirer, Inc.
(PDI) represented by its Editor-in-Chief Letty Jimenez Magsanoc, Tetch Torres (Torres), Philippine Star (PhilStar) represented by its Editor-in-Chief
Isaac Belmonte, and Edu Punay (Punay). Respondents Atty. Quinsayas, et al. and respondent media groups and personalities are collectively referred
to in this case as respondents.

The Antecedent Facts

On 23 November 2009, a convoy of seven vehicles carrying the relatives of then Maguindanao vice-mayor Esmael "Toto" Mangudadatu, as well as
lawyers and journalists, was on their way to the Commission on Elections office in Shariff Aguak to file Mangudadatu’s Certificate of Candidacy1 when
they were accosted by a group of about 100 armed men at a checkpoint in Sitio Malating, Ampatuan town, some four to ten kilometers from their
destination.2The group was taken hostage and brought to a hilly and sparsely-populated part of Sitio Magating, Barangay Salman, Ampatuan,
Maguindanao.3 The gruesome aftermath of the hostage-taking was later discovered and shocked the world. The hostages were systematically killed by
shooting them at close range with automatic weapons, and their bodies and vehicles were dumped in mass graves and covered with the use of a
backhoe.4 These gruesome killings became known as the Maguindanao Massacre. A total of 57 victims were killed, 30 of them journalists.
Subsequently, criminal cases for Murder were filed and raffled to the Regional Trial Court of Quezon City, Branch 221, and docketed as Criminal Cases
No. Q-09-162148-172, Q-09-162216-31, Q-10-162652, and Q-10- 163766. Petitioner is the counsel for Datu Andal Ampatuan, Jr. (Ampatuan, Jr.), the
principal accused in the murder cases.

In November 2010, Atty. Quinsayas, et al. filed a disbarment complaint against petitioner before this Court, docketed as Bar Matter No. A.C. 8827. The
disbarment case is still pending.

Petitioner alleged that on 22 November 2010, GMA News TV internet website posted an article, written by Dedace, entitled "Mangudadatu, others seek
disbarment of Ampatuan lawyer," a portion of which reads:

On Monday, Maguindanao Governor Esmael "Toto" Mangudadatu and four others filed a 33 page complaint against lawyer Sigrid Fortun whom they
accused of "engaging in every conceivable chichancery or artifice to unduly delay the proceedings by using and abusing legal remedies available."5

On even date, Inquirer.net, the website of PDI, also published an article, written by Torres, which according to petitioner also stated details of the
disbarment case, as follows:

"Respondent Atty. Fortun had astutely embarked in an untiring quest to obstruct, impede and degrade the administration of justice by filing countless
causes of action, all in the hope of burying the principal issue of his client’s participation or guilt in the murder of 57 people that ill-fated day of November
23, 2009," the petitioners said.6

Petitioner further alleged that on 23 November 2010, PhilStar published an article, written by Punay, which gave details of the disbarment allegations,
thus:

"Attorney Fortun used and abused legal remedies available and allowed under under the rules, muddled the issues and diverted the attention away from
the main subject matter of the cases, read the complaint.

***** ***** *****

"Respondent Attorney Fortun’s act of misleading the prosecution and trial court is a dishonest/deceitful conduct violative of Code of Professional
Responsibility," read the complaint.

"In so doing, he diminished the public confidence in the law and the legal profession, rendering him unfit to be called a member of the Bar." 7

Further, petitioner alleged that on 23 November 2010, Channel 23 aired on national television a program entitled "ANC Presents: Crying for Justice: the
Maguindanao Massacre." Drilon, the program’s host, asked questions and allowed Atty. Quinsayas to discuss the disbarment case against petitioner,
including its principal points. Petitioner was allegedly singled out and identified in the program as the lead counsel of the Ampatuan family.
Petitioner alleged that Atty. Quinsayas, et al. actively disseminated the details of the disbarment complaint against him in violation of Rule 139-B of the
Rules of Court on the confidential nature of disbarment proceedings. Petitioner further alleged that respondent media groups and personalities conspired
with Atty. Quinsayas, et al. by publishing the confidential materials on their respective media platforms. Petitioner pointed out that Drilon discussed the
disbarment complaint with Atty. Quinsayas in a television program viewed nationwide

Petitioner alleged that the public circulation of the disbarment complaint against him exposed this Court and its investigators to outside influence and
public interference. Petitioner alleged that opinion writers wrote about and commented on the disbarment complaint which opened his professional and
personal reputation to attack. He alleged that the purpose of respondents in publishing the disbarment complaint was to malign his personal and
professional reputation, considering the following: (1) the bases of the charges were not new but were based on incidents that supposedly took place in
January 2010; (2) it was timed to coincide with the anniversary of the Maguindanao Massacre to fuel hatred, contempt and scorn for Ampatuan, Jr. and
his counsel and violated the accused’s right to presumption of innocence and due process; (3) it was published following articles written about
petitioner’s advocacy for the rights of an accused and negated the impact of these articles on the public; and (4) respondents knew that the charges
were baseless as petitioner always opted for speedy trial and protection of the accused’s rights at trial. Petitioner further alleged that in announcing their
"causes of action" in the disbarment case, respondents were only seeking the approval and sympathy of the public against him and Ampatuan, Jr.

In its Comment, GMA Network alleged that it has no newspaper or any publication where it could have printed the article. It alleged that it did not
broadcast the disbarment complaint on its television station. GMA Network alleged that the publication had already been done and completed when Atty.
Quinsayas distributed copies of the disbarment complaint and thus, the members of the media who reported the news and the media groups that
published it on their website, including GMA Network, did not violate the confidentiality rule. GMA Network further alleged that Dedace, a field reporter
for the judiciary, acted in good faith and without malice when she forwarded the news to the news desk. GMA News also acted in good faith in posting
the news on its website. GMA Network denied that it conspired with the other respondents in publishing the news. GMA Network alleged that it posted
the disbarment complaint, without any unfair, critical, and untruthful comment, and only after it was "published" by Atty. Quinsayas, et al. who furnished
copies of the disbarment complaint to the media reporters. GMA Network alleged that it had no intention to malign petitioner’s personal and professional
reputation in posting the news about the disbarment complaint on its website.

In her Comment, Dedace clarified that she is a field news reporter of GMA Network and not a writer of the GMA News TV website. Her beat includes the
Supreme Court, the Court of Appeals, and the Department of Justice. Dedace alleged that on 22 November 2010, she received an advice from fellow
field reporter Mark Merueñas that the lawyer of Mangudadatu would be filing a disbarment case against petitioner. She waited at the Supreme Court. At
around 5:00 p.m., Atty. Quinsayas arrived. Atty. Quinsayas gave copies of the petition to news reporters and Dedace received one. Dedace prepared
and sent her news story to GMA Network where it went to the editor. Dedace alleged that she did not breach the rule on confidentiality of disbarment
proceedings against lawyers when she reported the filing of the disbarment complaint against petitioner. She alleged that she acted in good faith and
without malice in forwarding her news story to the news desk and that she had no intention to, and could not, influence or interfere in the proceedings of
the disbarment case. She further alleged that she honestly believed that the filing of the disbarment complaint against petitioner was newsworthy and
should be reported as news.

PDI alleged in its Comment that it shares content with the Inquirer.net website through a syndication but the latter has its own editors and publish
materials that are not found on the broadsheet. It alleged that Philippine Daily Inquirer, Inc. and Inquirer Interactive, Inc. are two different corporations,
with separate legal personalities, and one may not be held responsible for the acts of the other.

Torres8 alleged in her Comment that on 17 November 2010, a private prosecutor told her and several other reporters that a disbarment case would be
filed against petitioner. The disbarment case was actually filed on 22 November 2010 when Torres received a copy of the complaint. Since the lead of
the story came from a lawyer, Torres did not consider that writing a story about the filing of the disbarment complaint might amount to contempt of court.
Torres alleged that the writing of the story was an independent act and she did not conspire with any of the other respondents. Torres maintained that
she acted in good faith in writing the news report because the Maguindanao Massacre was a matter of public concern and the allegations in the
disbarment complaint were in connection with petitioner’s handling of the case. Torres further asserted that petitioner is a public figure and the public has
a legitimate interest in his doings, affairs and character.

In her Comment, Ressa alleged that she was the former head of ABS-CBN’s News and Current Affairs Group and the former Managing Director of ANC.
However, she was on terminal leave beginning 30 October 2010 in advance to the expiration of her contract on 3 January 2011. Ressa alleged that she
had no participation in the production and showing of the broadcast on 23 November 2010. Ressa adopts the answer of her co-respondents ABS-CBN
and Drilon insofar as it was applicable to her case.

ABS-CBN and Drilon filed a joint Comment. ABS-CBN alleged that ABS-CBN News Channel, commonly known as ANC, is maintained and operated by
Sarimanok Network News (SNN) and not by ABS-CBN. SNN, which produced the program "ANC Presents: Crying for Justice: the Maguindanao
Massacre," is a subsidiary of ABS-CBN but it has its own juridical personality although SNN and ABS-CBN have interlocking directors. ABS-CBN and
Drilon alleged that the presentation and hosting of the program were not malicious as there was no criminal intent to violate the confidentiality rule in
disbarment proceedings. They alleged that the program was a commemoration of the Maguindanao Massacre and was not a report solely on the
disbarment complaint against petitioner which took only a few minutes of the one-hour program. They alleged that the program was not a publication
intended to embarrass petitioner who was not even identified as the respondent in the disbarment complaint. Drilon even cautioned against the
revelation of petitioner’s name in the program. ABS-CBN and Drilon further alleged that prior to the broadcast of the program on 23 November 2010, the
filing of the disbarment complaint against petitioner was already the subject of widespread news and already of public knowledge. They denied
petitioner’s allegation that they conspired with the other respondents in violating the confidentiality rule in disbarment proceedings. Finally, they alleged
that the contempt charge violates their right to equal protection because there were other reports and publications of the disbarment complaint but the
publishers were not included in the charge. They also assailed the penalty of imprisonment prayed for by petitioner as too harsh.

In their joint Comment, respondents Mangudadatu, Ayon, Nenita, and Gemma alleged that petitioner failed to prove that they actively participated in
disseminating details of the disbarment complaint against him. They alleged that while they were the ones who filed the disbarment complaint against
petitioner, it does not follow that they were also the ones who caused the publication of the complaint. They alleged that petitioner did not provide the
name of any particular person, dates, days or places to show the alleged confederation in the dissemination of the disbarment complaint.

Respondents De Jesus, Hulog, Batario, and Mangahas, in their capacity as members of the Board of Trustees of the Freedom Fund for Filipino
Journalists, Inc. (FFFJ) and Atty. Quinsayas, former counsel for FFFJ, also filed a joint Comment claiming that the alleged posting and publication of the
articles were not established as a fact. Respondents alleged that petitioner did not submit certified true copies of the articles and he only offered to
submit a digital video disk (DVD) copy of the televised program where Atty. Quinsayas was allegedly interviewed by Drilon. Respondents alleged that,
assuming the articles were published, petitioner failed to support his allegations that they actively disseminated the details of the disbarment complaint.

In their joint Comment, PhilStar and Punay alleged that on 22 November 2010, Atty. Quinsayas, et al. went to this Court to file the disbarment complaint
but they were not able to file it on that day.9 Atty. Quinsayas, et al. were able to file the disbarment complaint the following day, or on 23 November 2010.
PhilStar and Punay alleged that their news article, which was about the plan to file a disbarment complaint against petitioner, was published on 23
November 2010. It came out before the disbarment complaint was actually filed. They alleged that the news article on the disbarment complaint is a
qualified privileged communication. They alleged that the article was a true, fair, and accurate report on the disbarment complaint. The article was
straightforward, truthful, and accurate, without any comments from the author. They alleged that Punay reported the plan of Mangudadatu, et al. to file
the disbarment complaint against petitioner as it involved public interest and he perceived it to be a newsworthy subject. They further alleged that
assuming the news article is not a privileged communication, it is covered by the protection of the freedom of expression, speech, and of the press under
the Constitution. They also alleged that the case is a criminal contempt proceeding and intent to commit contempt of court must be shown by proof
beyond reasonable doubt. They further alleged that they did not commit any contemptible act. They maintained that the news article did not impede,
interfere with, or embarrass the administration of justice. They further claimed that it is improbable, if not impossible, for the article to influence the
outcome of the case or sway this Court in making its decision. The article also did not violate petitioner’s right to privacy because petitioner is a public
figure and the public has a legitimate interest in his doings, affairs, and character.

Pavia died during the pendency of this case10 and was no longer included in the Comment filed for the FFFJ Trustees. Gozo resigned as member of the
FFFJ Trustees and was no longer represented by the FFFJ counsel in filing its comment. 11 Gozo did not file a separate comment.

The Issue

The only issue in this case is whether respondents violated the confidentiality rule in disbarment proceedings, warranting a finding of guilt for indirect
contempt of court.

The Ruling of this Court

First, the contempt charge filed by petitioner is in the nature of a criminal contempt. In People v. Godoy,12 this Court made a distinction between criminal
and civil contempt. The Court declared:

A criminal contempt is conduct that is directed against the dignity and authority of the court or a judge acting judicially; it is an act obstructing the
administration of justice which tends to bring the court into disrepute or disrespect. On the other hand, civil contempt consists in failing to do something
ordered to be done by a court in a civil action for the benefit of the opposing party therein and is, therefore, an offense against the party in whose behalf
the violated order is made.

A criminal contempt, being directed against the dignity and authority of the court, is an offense against organized society and, in addition, is also held to
be an offense against public justice which raises an issue between the public and the accused, and the proceedings to punish it are punitive. On the
other hand, the proceedings to punish a civil contempt are remedial and for the purpose of the preservation of the right of private persons. It has been
held that civil contempt is neither a felony nor a misdemeanor, but a power of the court.

It has further been stated that intent is a necessary element in criminal contempt, and that no one can be punished for a criminal contempt unless the
evidence makes it clear that he intended to commit it. On the contrary, there is authority indicating that since the purpose of civil contempt proceedings is
remedial, the defendant’s intent in committing the contempt is immaterial. Hence, good faith or the absence of intent to violate the court’s order is not a
defense in civil contempt.13

The records of this case showed that the filing of the disbarment complaint against petitioner had been published and was the subject of a televised
broadcast by respondent media groups and personalities.

We shall discuss the defenses and arguments raised by respondents.

GMA Network, Inc.

GMA Network’s defense is that it has no newspaper or any publication where the article could be printed; it did not broadcast the disbarment complaint
in its television station; and that the publication was already completed when Atty. Quinsayas distributed copies of the disbarment complaint to the
media.

GMA Network did not deny that it posted the details of the disbarment complaint on its website. It merely said that it has no publication where the article
could be printed and that the news was not televised. Online posting, however, is already publication considering that it was done on GMA Network’s
online news website.

Philippine Daily Inquirer, Inc.

PDI averred that it only shares its contents with Inquirer.net through a syndication. PDI attached a photocopy of the syndication page stating that "[d]ue
to syndication agreements between PDI and Inquirer.net, some articles published in PDI may not appear in Inquirer.net."14

A visit to the website describes Inquirer.net as "the official news website of the Philippine Daily Inquirer, the Philippines’ most widely circulated
broadsheet, and a member of the Inquirer Group of Companies."15 PDI was not able to fully establish that it has a separate personality from Inquirer.net.

ABS-CBN Corporation

ABS-CBN alleged that SNN is its subsidiary and although they have interlocking directors, SNN has its own juridical personality separate from its parent
company. ABS-CBN alleged that SNN controls the line-up of shows of ANC.

We agree with ABS-CBN on this issue. We have ruled that a subsidiary has an independent and separate juridical personality distinct from that of its
parent company and that any suit against the the latter does not bind the former and vice-versa.16 A corporation is an artificial being invested by law with
a personality separate and distinct from that of other corporations to which it may be connected.17 Hence, SNN, not ABS-CBN, should have been made
respondent in this case.

Maria Ressa

Respondent Ressa alleged that she was on terminal leave when the program about the Maguindanao Massacre was aired on ANC and that she had no
hand in its production. Ressa’s defense was supported by a certification from the Human Resource Account Head of ABS-CBN, stating that Ressa went
on terminal leave beginning 30 October 2010.18 This was not disputed by petitioner.

Sophia Dedace, Tetch Torres, Cecilia Victoria Oreña-Drilon,

and Edu Punay

Basically, the defense of respondents Dedace, Torres, Drilon, and Punay was that the disbarment complaint was published without any comment, in
good faith and without malice; that petitioner is a public figure; that the Maguindanao Massacre is a matter of public interest; and that there was no
conspiracy on their part in publishing the disbarment complaint. They also argued that the news reports were part of privileged communication.
In Drilon’s case, she further alleged that the television program was a commemoration of the Maguindanao Massacre and not solely about the filing of
the disbarment case against petitioner. Even as the disbarment complaint was briefly discussed in her program, petitioner’s name was not mentioned at
all in the program.

Violation of Confidentiality Rule by Respondent Media Groups and Personalities

Section 18, Rule 139-B of the Rules of Court provides:

Section 18. Confidentiality. - Proceedings against attorneys shall be private and confidential. However, the final order of the Supreme Court shall be
published like its decisions in other cases.

The Court explained the purpose of the rule, as follows:

x x x. The purpose of the rule is not only to enable this Court to make its investigations free from any extraneous influence or interference, but also to
protect the personal and professional reputation of attorneys and judges from the baseless charges of disgruntled, vindictive, and irresponsible clients
and litigants; it is also to deter the press from publishing administrative cases or portions thereto without authority. We have ruled that malicious and
unauthorized publication or verbatim reproduction of administrative complaints against lawyers in newspapers by editors and/or reporters may be
actionable. Such premature publication constitutes a contempt of court, punishable by either a fine or imprisonment or both at the discretion of the Court.
x x x19

In People v. Castelo,20 the Court ruled that contempt is akin to libel and that the principle of privileged communication may be invoked in a contempt
proceeding. The Court ruled:

While the present case involves an incident of contempt the same is akin to a case of libel for both constitute limitations upon freedom of the press or
freedom of expression guaranteed by our Constitution. So what is considered a privilege in one may likewise be considered in the other. The same
safeguard should be extended to one whether anchored in freedom of the press or freedom of expression. Therefore, this principle regarding privileged
communications can also be invoked in favor of appellant.21

The Court recognizes that "publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of
speech."22 As a general rule, disbarment proceedings are confidential in nature until their final resolution and the final decision of this Court. In this case,
however, the filing of a disbarment complaint against petitioner is itself a matter of public concern considering that it arose from the Maguindanao
Massacre case. The interest of the public is not on petitioner himself but primarily on his involvement and participation as defense counsel in the
Maguindanao Massacre case. Indeed, the allegations in the disbarment complaint relate to petitioners supposed actions involving the Maguindanao
Massacre case.

The Maguindanao Massacre is a very high-profile case. Of the 57 victims of the massacre, 30 were journalists. It is understandable that any matter
related to the Maguindanao Massacre is considered a matter of public interest and that the personalities involved, including petitioner, are considered as
public figure. The Court explained it, thus:

But even assuming a person would not qualify as a public figure, it would not necessarily follow that he could not validly be the subject of a public
comment. For he could; for instance, if and when he would be involved in a public issue. If a matter is a subject of public or general interest, it cannot
suddenly become less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become
involved. The public’s primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and
significance of the conduct, not the participant’s prior anonymity or notoriety. 23(Boldface in the original)

Since the disbarment complaint is a matter of public interest, legitimate media had a right to publish such fact under freedom of the press. The Court
also recognizes that respondent media groups and personalities merely acted on a news lead they received when they reported the filing of the
disbarment complaint.

The distribution by Atty. Quinsayas to the media of the disbarment complaint, by itself, is not sufficient to absolve the media from responsibility for
violating the confidentiality rule. However, since petitioner is a public figure or has become a public figure because he is representing a matter of public
concern, and because the event itself that led to the filing of the disbarment case against petitioner is a matter of public concern, the media has the right
to report the filing of the disbarment case as legitimate news. It would have been different if the disbarment case against petitioner was about a private
matter as the media would then be bound to respect the confidentiality provision of disbarment proceedings under Section 18, Rule 139-B of the Rules
of Court.

Section 18, Rule 139-B of the Rules of Court is not a restriction on the freedom of the press.1âwphi1 If there is a legitimate public interest, media is not
prohibited from making a fair, true, and accurate news report of a disbarment complaint. In the absence of a legitimate public interest in a disbarment
complaint, members of the media must preserve the confidentiality of disbarment proceedings during its pendency. Disciplinary proceedings against
lawyers must still remain private and confidential until their final determination. 24 Only the final order of this Court shall be published like its decisions in
other cases.25

Petitioner also failed to substantiate his claim that respondent media groups and personalities acted in bad faith and that they conspired with one
another in their postings and publications of the filing of a disbarment complaint against him. Respondent media groups and personalities reported the
filing of the disbarment complaint without any comments or remarks but merely as it was – a news item. Petitioner failed to prove that respondent media
groups and personalities acted with malicious intent. Respondent media groups and personalities made a fair and true news report and appeared to
have acted in good faith in publishing and posting the details of the disbarment complaint. In the televised broadcast of the commemoration of the
Maguindanao Massacre over ANC, the disbarment case was briefly discussed but petitioner was not named. There was also no proof that respondent
media groups and personalities posted and published the news to influence this Court on its action on the disbarment case or to deliberately destroy
petitioner’s reputation. It should also be remembered that the filing of the disbarment case against petitioner entered the public domain without any act
on the part of the media. As we will discuss later, the members of the media were given copies of the disbarment complaint by one of the complainants.

Esmael Mangudadatu, Dennis Ayon, Nenita and Ma. Gemma Oquendo

Respondents, while admitting that they were some of the complainants in the disbarment complaint against petitioner, alleged that there was no proof
that they were the ones who disseminated the disbarment complaint. Indeed, petitioner failed to substantiate his allegation that Mangudadatu, Ayon,
Nenita, and Gemma were the ones who caused the publication of the disbarment complaint against him. There was nothing in the records that would
show that Mangudadatu, Ayon, Nenita, and Gemma distributed or had a hand in the distribution of the disbarment complaint against petitioner.

Melinda Quintos De Jesus, Reynaldo Hulog, Redmond Batario, Malou Mangahas, and Atty. Prima Jesusa B. Quinsayas

Respondents De Jesus, Hulog, Batario, Mangahas, and Atty. Quinsayas alleged that petitioner was not able to establish the posting and publication of
the articles about the disbarment complaint, and that assuming the posting and publication had been established, petitioner failed to support his
allegation that they actively disseminated the details of the disbarment complaint. They further alleged that they did not cause the publication of the news
articles and thus, they did not violate the rule on privacy and confidentiality of disbarment proceedings.

Indeed, petitioner failed to prove that, except for Atty. Quinsayas, the other respondents, namely De Jesus, Hulog, Batario, Mangahas, and even Gozo,
who did not file his separate comment, had a hand in the dissemination and publication of the disbarment complaint against him. It would appear that
only Atty. Quinsayas was responsible for the distribution of copies of the disbarment complaint. In its Comment, GMA Network stated that the
publication "had already been done and completed when copies of the complaint for disbarment were distributed by one of the disbarment
complainants, Atty. Prima Quinsayas x x x."26 Dedace also stated in her Comment that "Atty. Quinsayas gave copies of the disbarment complaint
against Atty. Fortun and she received one."27

Atty. Quinsayas is bound by Section 18, Rule 139-B of the Rules of Court both as a complainant in the disbarment case against petitioner and as a
lawyer. As a lawyer and an officer of the Court, Atty. Quinsayas is familiar with the confidential nature of disbarment proceedings. However, instead of
preserving its confidentiality, Atty. Quinsayas disseminated copies of the disbarment complaint against petitioner to members of the media which act
constitutes contempt of court. In Relativo v. De Leon,28 the Court ruled that the premature disclosure by publication of the filing and pendency of
disbarment proceedings is a violation of the confidentiality rule.29 In that case, Atty. Relativo, the complainant in a disbarment case, caused the
publication in newspapers of statements regarding the filing and pendency of the disbarment proceedings. The Court found him guilty of contempt.

Indirect contempt against a Regional Trial Court or a court of equivalent or higher rank is punishable by a fine not exceeding P30,000 or imprisonment
not exceeding six months or both.30 Atty. Quinsayas acted wrongly in setting aside the confidentiality rule which every lawyer and member of the legal
profession should know. Hence, we deem it proper to impose on her a fine of Twenty Thousand Pesos (P20,000).

WHEREFORE, we find Atty. Prima Jesusa B. Quinsayas GUILTY of indirect contempt for distributing copies of the disbarment complaint against Atty.
Philip Sigfrid A. Fortun to members of the media and we order her to pay a FINE of Twenty Thousand Pesos (P20,000).