Clear and Present Danger test

Question: Whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree (Schenck v. US, 249 US 47, 1919)

Emphasis: The danger created must not only be clear and present but also traceable to the ideas expressed. (Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969)

Note: This test has been adopted by our SC, and is most applied to cases involving freedom of expression.

2. Dangerous Tendency test

Question: Whether the speech restrained has a rational tendency to create the danger apprehended, be it far or remote, thus government restriction would then be allowed. It is not necessary though that evil is actually created for mere tendency towards the evil is enough.

Emphasis: Nature of the circumstances under which the speech is uttered, though the speech per se may not be dangerous.

3. Grave-but-Improbable Danger test

Question: Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger (Dennis v. US, 341 US 494, 1951)

Note: This test was meant to supplant the clear and present danger test.

4. Balancing of interest test

Question: which of the two conflicting interests (not involving national security crimes) demands the greater protection under the particular circumstances presented:

a. When particular conduct is regulated in the interest of public order

b. And the regulation results in an indirect, conditional and partial abridgement of speech (Gonzales v. COMELEC, G.R.

No. L- 27833, Apr. 18, 1969).

5. O’Brien test

Question: in situations when “speech” and “non- speech” elements are combined in the same course of conduct, whether there is a sufficiently important governmental interest that warrants regulating the non-speech element, incidentally limiting the “speech” element.

Note: A government regulation is valid if:

a. It is within the constitutional power of 
 the government; 


b. In furtherance of an important or 
 substantial governmental interest; 


c. Governmental interest is unrelated to the suppression of free expression; 


and 


d. The incidental restriction on the 


freedom is essential to the furtherance of that interest. (US v. O’Brien, 391 US 367, 1968; SWS v. COMELEC, G.R.

147571, May 5, 2001) 6. Direct Incitement test


Question: What words did a person utter and

what is the likely result of such utterance

Emphasis: The very words uttered, and their ability to directly incite or produce imminent lawless action.

Note: It criticizes the clear and present danger test for being too dependent on the specific circumstances of each case.

________________________________________________________________________________________________________

_____________

La guardia v. Soriano


- MTRCB has no power to sanction


- Up to the network to discipline their own personalities Regulation: COMELEC


*Media is prohibited form discussing the plebiscite.


SC: It is a violation of freedom of speech 


* Plebiscite is not within the matters which are prohibited. Cannot be considered a regular election matter.

*COMELEC: REGULATE airtime and print space
 - It is Constitutional in Airtime


- In Print Space: It amounts to taking


* Print Space is a Property Right 


* There must be just compensation Part of Eminent Domain 


* Last Resort


* Genuine Necessity of the thing


* IF the newspaper does not allow or sell a specific space to the government Case:

Broadcast media: Free airtime
 1st: Network agreed


2nd: Challenged the regulation


SC: The regulation of the property is an exercise of Police Power

Not a right, but a privilege

* Legislative Franchis
 Q: Just compensation?


A: No. Airwaves are not owned by the network, but by the state.


: The use thereof is regulated by the government Does it violate the equal protection clause?


No. 


- BROAD CAST: NOT the owner
 - Print Media: Owner

In order to promote public policy: it is not a violation of the freedom of speech and expression


* Only during campaign period


* Prohibition applies only to candidates Exit Polls


- SC: Decided it as UNCONSTITUTIONAL 
 - Freedom of Speech and Expression: Not official

Surveys


- SC: UNCONSTITUTIONAL
 - Provided that Survey is Legitimate 
 - Even if entered for a particular candidate
 - Authenticity

COMMERCIAL SPEECHES
 - There should be truth


- Lower in position in the hierarchy of rights ADMINISTRATION OF JUSTICE


- in order not to subvert the justice system
 - SC prohibits the discussion of the case


* Subjudice Rule: while the case is PENDING IN COURT
 * Prohibition: Only pending cases

Courts are NOT EXEMPT from public criticism and public scrutiny
 - To prevent the faith of the people with the Court eroded 
 - Clear and Present danger test

Case: Gonzales v. Zaldivar
 - Tanodbayan


- Justice Navasa published 
 - SC: Suspended indefinitely
 - It will erode the faith of the people
 - Cause anarchy

Case: ERAP’s Impeachment case


- Media was allowed to take coverage inside a courtroom
 - It affects national Interest


- The proceeding is not judicial, IMPEACHMENT cases are POLITICAL in nature Maguindanao Case


- Number of Victims, Number of the Accused: Many
 - Use of the camera in court room was allowed
 - The right of the people are matters of public concern Guidelines for allowing camera to cover a court proceeding
 (1)


(2)
 (3)

Media-tag-along
 As early as Pp v. Castello
 - Police are prone to 
 - Practice should be stopped RIGHT TO ASSEMBLE PEACEABLY


- part of the freedom of speech and expression
 - Power in numbers

Rally: Peaceful assembly
 : For public assembly

PERMIT TO RALLY


GR: it is a liberty right, hence permit is not required


XPNS: Must secure a permit when:


* Rationale: To regulate TIME, PLACE, AND MANNER Schedule

It cannot be denied simply because of inconvenience If permit to rally is denied


What must be included in the permit?


1. Name


2. Purpose of the Rally
 3. Who are involved
 4. Secure from infiltration

Why is there the presence of police: to protect every citizen in case the rally turns to be chaotic, harmful Police: Maximum Tolerance


- Present and Danger Local Chief Executive: 


- if he denies the conducting of a rally, the reasons must be stated


* Clear and present danger which must be supported by EMPIRICAL DATA OR PROOF CASE: JBL Reyes v. Bagatsing


: Permit to rally in Luneta + Near Roxas Boulevard (US Embassy)
 : Immediately


: In order to say that there is Clear and Present danger the BURDEN OF PROOF IS ON THE STATE
 : Applied for a permit but was later on denied


: SC: there is NO proof that there was a clear and Present danger


: even assuming that the Philippines adhere with the International Laws, there was no proof that the distance _______

1017: Permit from mayor
 - Not valid?

David v. Arroyo Butch Aquino

Nestle Philippines v. Labor Union
 - Strike, lock-out


SC: issued a circular that rallies shall not be allowed within a certain radium of courts of justice

REDRESS OF GRIEVANCES CASE: JBL v. Bagatsin


O’Brien v. US

In order that it be valid

Although regulated, the motion used by the Government should be the LEAST restrictive to freedom of speech and expression

CYBERCRIME ACT

Private Place: Consent of the owner of the Place School Campus: NO need to secure a permit
 : however, the school amy impose R & R

Freedom Park: Permits are not allowed

If no freedom park: All PUBLIC Places may be considered as Freedom Park Public School Teachers Case — held administratively liable


SC: They were held liable not because of the Freedom of Speech and Expression matter but because of their absenteeism

Distinguish:


1. Content Based: 


2. Content Neutral: No relation to the content US v. Alvarez

————————————————————————————————————————————————————

10/21/15 Disini Unsolicited Imbong

Apply the Strict scrutiny test: There must be a state compelling interest FREEDOM

OF RELIGION

Free exercise clause

Non-establishment clause 2. Rt to act in accordance to such belief : May be limited

1. Rt to believe

( A B S O L U T E ) : S t a t e Cannot intrude

One religion

Establishing all religion No law to be made which will favor 1 religion over another

Even if clear and present danger, there must be a compelling state interest and the restriction must be the LEAST intrusive

If there are other restrictions w/c are less int

NO law shall be establishing one religion, or establishing all religions or no law w/c will favor one religion over another =SEPARATION OF CHURCH AND STATE

PURELY religious conflicts, the state shall not side any religion

US: there is a board of education w/c regulates all the schools, they ordered to pray the “Our Father”


: basically a Christian prayer
 : Not allowed 


Formulated all religion, formulated an ecumenical prayer.


— No. It fairies all religion

Instead: “Offer a Moment of Silence” SC held: No. it is a form of meditation (is either a religious activity or a useless activity)

State must be religious neutral

bec There is a thin line b/n state activities and religious activities, expanding social economic rights
 I.e. Helping the poor, meditation

Test whether the law is ever

1. Has a primarily secular purpose, legislative purpose, secular must only be incidental
 2. the law must not primarily have the tendency to advance or inhibit a religion 


3. There should be no excessive entanglement b/n the state and the religion, no active involvement I.e Giving free lunch stubs regardless of religion - legislative purpose


- Giving computers to all schools


- Giving tax deduction to those who refuse a particular book or computer for non-religious activity where there will be a close monitoring - violation


- US put up the 10 commandments, but the project was sponsored by =yes, there is no financial support, the expense was shouldered by private individual but the state was the one creating the project, it advances one religion Case: Arkansan Statue : Prohibits the Darwin Theory of Evolution, force them to discuss the Darwin’s Theory
 : If they will not use the book, she will be charged administratively


: If she uses the book, she will be forced to teach the theory which the state 
 : SC, statue is unconstitutional

1000 fee for registration, is merely to defray the expenses of the legislation Not a violation of the freedom of religion

AS long as there is a primarily legislative purpose Case: Aglipay v. Ruiz

Fornacier v. CA


- who is the supreme bishop
 - SC; Purely a secular issue


RH Law


Purpose: Give options to pregnant women whether they will use artificial or natural birth control
 SC: Secular reasons: morals of certain issues





UNCONSTITUTIONAL: 


- Compelling, requiring hospital, clinics, requiring them to give family planning
 - Refere them to another hospital or clinic


- No substantial jurisdiction Section 6. 


Historical Background


1935: The liberty abode and of changing the same shall not be ____ w/n limits prescribed by the law
 - Travel was not included: Implicit but not express


- Limited bylaw only when there is a clear and present danger RIGHT TO TRAVEL 


1973 Constitution


- and of travel shall not be impaired unless upon lawful order and the court or who necessary
 - Explicit — safety, health, 





1987 CONSTITUTION
 : SPLIT


: Liberty of abode and of changing the same


: Can only be impaired by law and neither ___________


: Interest, health, safety and security: TRAVEL MANOTOC Case: Right to Travel


How can the Court impose its jurisdiction?

Case: City of Manila ________ 


: persons of ill repute were forced to leave
 SC: Unconstitutional

Rubi v. Provincial Board of Oriental Mindoro
 - Mangyan


- Declared by the SC as valid
 - another issue: Private Fxns
 - Does not need an ordinance


- Religious: Christians and non-Christians, does not refer to __________

Escritor v. Estrada


- Benevolent Neutrality: NO compelling state interest RIGHT TO INFORMATION

-

MATTERS involving public concern

-

Duty of the public official to give

-

Info: right of the people — either foreigner or citizens

-

Access to all the citizens: Limited to Filipinos

Life and Liberty Right To be informed


- a PUBLIC RIGHT: anyone can invoke that ————

Not absolute Limited


I.e Time to access


- Content: Not readily available
 - Those involved in national security
 - Deliberative phrase not available

Q: Right to information same with Freedom of Speech and Expression Rt to inför is an essential Premise of the freedom of speech and expression Not merely an adjunct of F. of speech and expression

Transparency of ________

Honesty in the public service Purpose: Enhance public service Involve in the governance of the state Balmonte v. Belmonte


GSIS 


: Filed a petition for mandamus 
 : SC: not discretionary 


: List of members in the Batasang Pambansa: UNSECURED
 : SC: Mandamus will lie, It is only against a public official


Belmonte has a right to privacy


SC: government officers has no right to privacy 
 Belmonte: Not from public funds 


SC: GSIS is created by law. Public in Character
 : Sessions of Congress, Public 


- Conduct executive sessions
 - Public is not allowed


Deportation


- Decision made that:

Secrecy in Bank Deposits 
 : Protect the Banking Systems


2 Exempted from MTRCB
 : Produced by the Government
 : News Reel (Straight Report) 
 : No comments

“Inside Story”: Loren Legard
 MTRCB: Not news reel RIGHT TO ASSOCIATION

… shall not be prohibited provided that it is not contrary to law
 - What makes it contrary to law is not on the name


- It is the Purpose w/c makes it contrary to law
 : Not because of the name


: Even is the objective is noble 


Right not to associate


- Rotary International v. Rotary


- primary purpose: good will and peace IBP 


- Mantilla 


- SC: Already a member of the bar: Interrogate the associate: suspension of the SC Section 9


Eminent Domain


- Private Property shall not be taken


Private property shall not be are property shall not be take for public use without just compensation


Shall not: Mandatory! (emphasis)

1. Taking: Expropriating - exercise of eminent domain
 Pp v. Castel

1. Enter a private property
 2. Warrant of color


3. Not for a momentary period, for public use


4. Totally oust the owner of the use and enjoyment of the property
 - color or warrant of legal authority

2. Property to be taken: Private


In document Political Law Notes (Page 58-67)