Political Law Bar Q and A

Political Law Bar Questions and Answers

Bar Q and A #22

1.) Batas Pambansa 880, the Public Assembly Law of 1985, regulates the conduct of all protest rallies in the Philippines. Salakay, Bayan! held a protest rally and planned to march from Quezon City to Luneta in Manila. They received a permit from the Mayor of Quezon City, but not from the Mayor of Manila. They were able to march in Quezon City and up to the boundary separating it from the City of Manila. Three meters after crossing the boundary, the Manila Police stopped them for posing a danger to public safety. Was this a valid exercise of police power?

Since the protesters merely reached three meters beyond the boundary of Quezon City, the police authorities in Manila should not have stopped them, as there was no clear and present danger to public order. In accordance with the policy of maximum tolerance, the police authorities should have asked the protesters to disperse and if they refused, the public assembly may be dispersed peacefully.

Textbox

2.) The security police of the Southern Luzon Expressway spotted a caravan of 20 vehicles, with paper banners taped on their sides and protesting graft and corruption in government. They were driving at 50 kilometers per hour in a 40-90 kilometers per hour zone. Some banners had been blown off by the wind, and posed a hazard to other motorists. They were stopped by the security police. The protesters then proceeded to march instead, sandwiched between the caravan vehicles. They were also stopped by the security force. May the security police validly stop the vehicles and the marchers?

In accordance with the policy of maximum tolerance, the security policy should not have stopped the protesters. They should have simply asked the protesters to take adequate steps to prevent their banners from being blown off, such as rolling them up while they were in the expressway and requires the protesters to board their vehicle and proceed on their way.

Textbox

3.) In the morning of August 28, 1987, during the height of the fighting at Channel 4 and Camelot Hotel, the military closed Radio Station XX, which was excitedly reporting the successes of the rebels and movements towards Manila and troops friendly to the rebels. The reports were correct and factual. On October 6, 1987, after normalcy had returned and the Government had full control of the situation, the National Telecommunications Commission, without notice and hearing, but merely on the basis of the report of the military, cancelled the franchise of station XX. Discuss the legality of: 1. The action taken against the station on August 28, 1987; 2. The cancellation of the franchise of the station on October 6, 1987.

1. The closing down of Radio Station XX during the fighting is permissible. With respect to news media, wartime censorship has been upheld on the ground that “when a nation is at war many things that might be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” The security of community life may be protected against incitements to acts of violence and the overthrow by force of orderly government (Near v. Minnesota, 283 U.S. 697 (1931), Justice Holme’s opinion in Schenck v. United States, 249 U.S. 47 (1919); New York
Times v. United States, 403 U.S. 713 (1971)). With greater reason then may censorship in times of emergency be justified in the case of broadcast media since their freedom is somewhat lesser in scope. The impact of the vibrant speech, as Justice Gutierrez said, is forceful and immediate. Unlike readers of the printed work, a radio audience has lesser opportunity to cogitate, analyze and reject the utterance (Eastern Broadcasting Corp (DYRE) v. Dans, 137 SCRA 647 (1985)).

2. But the cancellation of the franchise of the station on October 6, 1987, without prior notice and hearing, is void. As held in 137 SCRA 647 (1985), the cardinal primary requirements in administrative proceedings (one of which is that the parties must first be heard) as laid down in Ang Tibay v. CIR, 69 Phil. 635 (1940) must be observed in closing a radio station because radio broadcasts are a form of constitutionally- protected expression.

Textbox

4.) The Secretary of Transportation and Communications has warned radio station operators against selling blocked time, on the claim that the time covered thereby are often used by those buying them to attack the present administration. Assume that the department implements this warning and orders owners and operators of radio stations not to sell blocked time to interested parties without prior clearance from the Department of Transportation and Communications. You are approached by an interested party affected adversely by that order of the Secretary of Transportation and Communications. What would you do regarding that ban on the sale of blocked time? Explain your answer.

I would challenge its validity in court on the ground that it constitutes a prior restraint on freedom of expression. Such a limitation is valid only in exceptional cases, such as where the purpose is to prevent actual obstruction to recruitment of service or the sailing dates of transports or the number and location of troops, or for the purpose of enforcing the primary requirements of decency or the security of community life (Near v. Minnesota, 283 U.S. 697 (1931)). Attacks on the government, on the other hand, cannot justify prior restraints. For as has been pointed out, “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 (United States v. Bustos, 37 Phil. 741 (1918)).

The parties adversely affected may also disregard the regulation as being on its face void. As has been held, “any system of prior restraints of expression comes to the court bearing a heavy presumption against its constitutional validity,” and the government “thus carries a heavy burden of showing justification for the imposition of such a restraint” (New York Times Co. v. United States, 403 U.S. 713 (1971)). The usual presumption of validity that inheres in legislation is reversed in the case of laws imposing prior restraint on freedom of expression.

Textbox

5.) The KKK Television Network (KKK-TV) aired the documentary, “Case Law: How the Supreme Court Decides,” without obtaining the necessary permit required by P.D. 1986. Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the airing of KKK- TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review over all television programs, except “newsreels” and programs “by the Government”, and the subject documentary does not fall under either of these two classes. The suspension order was ostensibly based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an order. KKK-TV filed a certiorari petition in court, raising the following issues: The act of MTRCB constitutes “prior restraint” and violates the constitutionally guaranteed freedom of expression.

The contention of KKK-TV is not tenable. The prior restraint is a valid exercise of police power. Television is a medium which reaches even the eyes and ears of children (Iglesia ni Cristo v. CA, 259 SCRA 529 [1996]).

Textbox

6.) What is the doctrine of "overbreadth"? In what context can it be correctly applied? Not correctly applied? Explain.

A statute is overbroad when a governmental purpose to control or prevent activities constitutionally subject to state regulations is sought to be achieved by means which sweep unnecessarily broadly and invade the area of protected freedom. It applies both to free speech cases and penal statues.

However, a facial challenge on the ground of overbreadth can only be made in free speech cases because of its chilling effect upon protected speech. A facial challenge on the ground of overbreadth is not applicable to penal statutes, because in general they have an in terrorem effect (Southern Hemisphere Engagement Network, Inc. v. Anti-terrorism Council, 632 SCRA 146)

Textbox

7.) In a protest rally' along Padre Faura Street, Manila, Pedrong Pula took up the stage and began shouting "kayong mga kurakot kayo! Magsi-resign na kayo! Kung hindi, manggugulo kami dito!" ("you corrupt officials, you better resign now, or else we will cause trouble here!") simultaneously, he brought out a rock the size of a• fist and pretended to hurl it at the flagpole area of a government building. He did not actually throw the rock. a. Police officers who were monitoring the situation immediately approached Pedrong Pula and arrested him. He was prosecuted for seditious speech and was convicted. On appeal, Pedrong Pula argued he was merely exercising his freedom of speech and freedom of expression guaranteed by the Bill of Rights. Decide with reasons. b. What are the two (2) basic prohibitions of the freedom of speech and of the press clause? Explain.

a.) Pedrong Pula should be His freedom of speech should not be limited in the absence of a clear and present danger of a substantive evil that the state had the right to prevent. He pretended to hurl a rock but did not actually throw it. He did not commit any act of lawless violence (David v. Macapagal-Arroyo, 489 SCRA 160)

b.) The two basic prohibitions on freedom of speech and freedom of the press are prior restraint and subsequent punishment (Chavez Gonzales, 545 SCRA 441)

Textbox

8.) When is a facial challenge to the constitutionality of a law on the ground of violation of the Bill of Rights traditionally allowed? Explain your answer.

A facial challenge is one that is launched to assail the validity of statutes concerning not only protected speech, but also all other rights (in the First Amendment [U.S.]) including religious freedom, freedom of the press, and the rights of the people to peaceably assemble and to petition the Government for a redress of grievances.

While the Court has withheld the application of facial challenges to strictly penal statutes, it has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights.

For unlike its counterpart in the U.S., the Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA 146)

Textbox

9.) Allmighty Apostles is a relatively new religious group and movement with fast- growing membership. One time, DeepThroat, an investigative reporter, made a research and study as to what the group’s leader, Maskeraid, was actually doing. DeepThroat eventually came up with the conclusion that Maskeraid was a phony who is just fooling the simple-minded people to part with their money in exchange for the promise of eternal happiness in some far-away heaven. This was published in a newspaper which caused much agitation among the followers of Maskeraid. Some threatened violence against DeepThroat, while some others already started destroying properties while hurting those selling the newspaper. The local authorities, afraid of the public disorder that such followers might do, decided to ban the distribution of the newspaper containing the article. DeepThroat went to court complaining about the prohibition placed on the dissemination of his article. He claims that the act of the authorities partakes of the nature of heckler’s veto, thus a violation of press freedom. On the other hand, the authorities counter that the act was necessary to protect the public order and the greater interest of the community. If you were the judge, how would you resolve the issue?

If I were the judge, I would rule that the distribution of the newspaper cannot be banned. Freedom of the news should be allowed although it induces a condition of unrest and stirs people to anger. Freedom of the press includes freedom of circulation (Chavez v. Gonzales, 545 SCRA 441). When governmental action that restricts freedom of the press is based on content, it is given the strictest scrutiny and the government must show that there is a clear and present danger of the substantive evil which the government has the right to prevent. The threats of violence and even the destruction of properties while hurting hose selling the newspaper do not constitute a clear and present danger as to warrant curtailment of the right of DeepThroat to distribute the newspaper (Chavez v. Gonzales, 545 SCRA 441)

Textbox

10.) What is "commercial speech"? Is it entitled to constitutional protection? What must be shown in order for government to curtail "commercial speech"? Explain.

Commercial speech is communication which involves only the commercial interests of the speaker and the audience, such as advertisements.

Commercial speech is entitled to constitutional protection (Ayer Productions Pty., Ltd. v. Capulong 160 SCRA 861)

Commercial speech may be required to be submitted to a governmental agency for review to protest public interests by preventing false or deceptive claims (Pharmaceutical and Health Care Association of the Philippines v. Duque, 535 SCRA 265)

Textbox