Freedom of Expression & Assembly Flashcards
because these rights are maintained for the expectation of privacy, they are given primacy
all rights are equal yet we give more primacy as they apply to the very core of our indiviudal contribution to society (PRIMUS INTER PARES)
FREEDOM OF EXPRESSION
legal basis
section 4
No law shall be passed
abridging the freedom of speech, of expression,
or of the press, or the right of the people
peaceably to assemble and petition the
government for redress of grievances.
There are two rights in section 4 that are distinct rights and their mechanics
- freedom of EXPRESSION
- freedom of ASSEMBLY
freedom of EXPRESSION
note
in the context under the constitution and not international law yet
targeted at law making:
“No law shall be passed
abridging the freedom of [sep] speech, of expression,
or of the press”
law + abridging + freedom of [sep]
each of these are elements
note
sep - speech, expression press
> freedom of expression (> LAW)
- national
- local
the gov’t’s exercise of its POLICE POWER
( ABRIDGING)
two types of governmental act
- prior restraint
- subsequent punishment
IOW, no law providing prior restraint or a subsequent punishment
(> freedom of [sep])
- shall not infringe PROTECTED SPEECH
while there is the presence of FoS, it is in the context of the common good.
IOW, this speech in the context of the common good (not absolute individual right) then this is protected speech which necessarily means there is a UNprotected speech
what is:
[a] prior restraint
[b] subsequent punishment
[a] gov’t could put a restraint BEFORE you enjoy that right
- the right is enjoyed the very moment that you express yourself
[b]
subsequent punishment, which is a gov’t action in law providing a punishment after your expression
when is there PROTECTED Speech?
GEN: generally ALL speech is protected
GEN2: protected speech with abridging (or that gov’t action), it would be [[presumed]] UNconstitutional
EXC
1. Low-value expression
2. Libel
3. Obscene Speech
note
- based on Philippine JP, “hate speech” is another example in the international law.
> presumed unconstitutional >
they must be questioned in court so that they become presumed unconstitutional.
there must be a case filed.
in the questioning,
needs a case file in court against a particular law
JP provides the modes of questioning laws that place [a] prior restraint [b] subsequent punishment on protected speech and they are questioned in court.
What are the 2 modes of questoining
- as applied
- facial challenged
> presumed unconstitutional > questoined in court > as applied
as general rule, the law must be applied before it would be questioned because the question of the unapplied law will not mature for the court.
in cases involving laws imposing [a] & [b] to protected speech, those laws may be questoined in court using a FACIAL CHALLENGE
facial challenge
on its face, it
UINISERT HERE
so sec 4 prohibits prior restraint and subsequent punishment on speeches taht are PROTECTED.
but if the speech is UNprotected, prior restraint, subsequent punishment is allowed
INSERT HERE
what constitutes PROTECTED SPEECH
is it only oral? how about action, illustration
PROTECTED SPEECH
[A] Contents
- political
- commercial (lawful trade, not misleading/false)
[B] as to FORM
- oral
- written
- illustration
- symbols
- media
GENERALLY, they are PROTECTED. However certain types of speech, regardless of content or form, will not be protected by section 4
protect speech > content > commercial trade
what if it is unlawful trade, mislaeding/false?
it becoms UNPROTECTD SPEECH
GENERALLY, they are PROTECTED. However certain types of speech, regardless of content or form, will not be protected by section 4
if that FORM or CONTENT
- low-value expressions
- libel
- obscene speech
GEN2: protected speech with abridging (or that gov’t action), it would be [[presumed]] UNconstitutional
what is the effect of “presumed”?
it can be overturned or rebutted
how to overturn that presumption
note
so this means there is a gov’t act on the protected speech
being presumed, the gov’t has an opportunity to show that its act (in the form of the law) abridging protected speech is CONSTITUTINOAL
how then can the gov’t do that?
classify the law that law in prior restraint or subsequent punishment or both into:
a. Content-Neutral
b. Content-Based
law + abridinging + protected speech > classification b (content based)
if it places prior restraint / subsequent punishemtn based on the
“SUBJECT MATTER”
Law says “no person shall make bomb jokes in airports” (there is place but it’s more on the CONTENT/subject matter”
you cannot express bomb jokes in the airport
law + abridinging + protected speech > classification b (content NEUTRAL )
all other incidents of speech other than the subject matter
considers:
- time,
- place
- manner,
not the subject matter
ex.
- “no more person may validly campaign in the streets (place),
- no person can campaign before and after campaigning period (time)
- no campaign using 10ft in height (manner)
what is the relevance of differentiating CN & CB?
gov’t has classified because the hurdle differs between CN & CB
CN - intermediate review
CB
- strict scrutiny review
Law > abridging > protected speech > overcome presumption> classification > CN > Intermediate Review
what must gov’t show?
There is a:
- legitimate gov’t interest to be protected
ex. (public order, public peace, national security)
if passes, it overcomes the presumption that the abridged protected speech is CONSTIUTION
but even it be CONSITUTTIONAL, it can still be made UNconstitutional not insofar as the rights but because of other grounds such as it not passing the THREE READING
“unless declared unconstitutional on some other grounds”
be careful with this
Law > abridging > protected speech > overcome presumption> classification > CB > **STRICT SCRUTINY*
what must gov’t show?
Gov’t must show in order to overcome the presumption of unconstitutionality:
- CLEAR & PRESENT danger
ex.
- poliarized society between dilawan and pulahan
dilawan - supporters of DU30
pulawan -
can it be that a law be CN and CB?
yes, that law must be examined piece by piece.
so this particular provisions, would be an intermediate review and this particular provision would be strict scrutiny
Disini v. Executive Secretary
Unprotected Speech > Low-value expression
soriano v. ___ (2009) dating daan case
free tv about his religion
- soriano in one of the ep. deconstructing other religions and the other religions argued back. in that ep., Soriano exploded and hurled expletive words ON LIVE TV
- as a resul,t he was given a notice to explain for his channel, he was suspended by the gov’t by the MTRCB.
under its charter, MTRCB has the power to suspend, Soriano filed a case
argued for
1. the charter of MTRCB
2. the act of MTRCB (subsequent punishment)
his argument was based on PROTECTED SPEECH (follow the diagram)
the court was of a different opinion, his expletive speech was UNPROTECTED SPEECH because it was a low avlue expression
in the case of SOriano, what is concerned LOW-VALUE EXPRESSION
- [LOW-VALUE EXPRESSION]
a.. insulting, fighting, incite public disorder, national security
b.. commercial speech that is misleading and false
(ex. discount on shabu - [OBSCENE SPEECH]
- MIller v. California (1970)
- Soriano v. La Guardia (2009)
> Unprotected Speech > Low Value Expression > Obscene Speech
what is of obscene
- who has access?
- adults only access and not children, then the material is obscene if it passes 3 elements
> Unprotected Speech > Low Value Expression > Obscene Speech > who has access > ADULTS
ALL ELEMENTS OF OBSCENE must be present
ALL ff. must concur in order to be obscene
- material appeals to the Prurient interest of an individual based on contemporary community standards
- appealing of sex
- depict sexual conduct in an offensive way
- the penis of the UP statute - that expression has no scientific, political, artistic value (Miller v. California)
> Unprotected Speech > Low Value Expression > Obscene Speech > who
has access > CHILDREN
ALL ELEMENTS OF OBSCENE must be present
Soriano v Laguardia
content is obscene insofar as children is concerned is when it is
- INDECENT
so in te case of soriano, the cihldren had free and easy access to the channel, those expletives were therefore obscene
so even the Phil government against youtube who showed obscene material to the kids. .
the bar is very law: standard of INDENCENCY
note
- that’s why in YT
is PORN is unprotected speech?
it depends on contemporary community standard
there is
- soft porn (no genitalia)
- traditional porn (
- extreme porn
are we okay as a for soft porn community standard
if NOT OBSCENE ang soft porn , it is protected speech
if obscene, then soft porn is UNPROTECTED
the court must determine what is the court community standards
> Unprotected Speech > LIBEL
how to know if it’s libel? ELEMENTS of libel
- based on the RPC
ALL must be present
-
imputation of vice, crime, or defect
- (bogo, purdoy) - must be on an identified person or identifiable person
-
published
- if spoken to the person themselves, but if s - MALICE
> LIBEL > 2 what does
identifIABLE person?
Prosecution has to show that BLIND ITEM makes them identifiable
they will have to show, makes you identifiable
prosecution has to use
- sillouhette of a person
> LIBEL > 3
what is concerned publish
if spoken to the person, it is not PUBLISHED
ex. they make a gc or won’t use ‘privacy’ settings
> MALICE
how to prove MALICIOUS
RPC
mere utterance of an imputation fo ac rime that on an identifiahle person published is PRESUMPTION OF MALICE
IOW, if the three elements are present, then that is prima facie evidence that there is MALICE .
while there is PRESUMPTION OF MALICE as a general rule,
there is no presumption of malice based on the ff.
- Qualified Privilege Communications
- reports to a person with moral, legal, or social duty to address imputation
- Fair & True Report on Gov’t Process W/o commentary
-fair commentaries on public interest
-
absolute privilege communications
- parliamentary debates
- judicial debates - ## comments on public officials and public figures
note
- if it falls under those, it does not mean there is no malice, it menas THERE IS NO PRESUMPTION OF MALICE
prosecution can still be had by other independent evidence
UNPROTECTED > LIBEL > Element 4 > EXC to presumption > Qualified Privilege Communication
what is qualfied privileg
reports to a person with moral, legal, or social duty to address imputation
ex. Ivan cheats in Consti and Jon reports it,
CONCLUSIOn
all three elements are present and there is no presumption of malice on part of Jon.
EFFECT
if that qualified privilege communication is to be libelous, then there has to be independent evidence to show that MALICE exist
UNPROTECTED > LIBEL > Element 4 > EXC to presumption > Qualified Privilege Communication > how to make QPC libelous
CONCLUSIOn
all three elements are present and there is no presumption of malice on part of Jon.
EFFECT
if that qualified privilege communication is to be libelous, then there has to be independent evidence to show that MALICE exist
UNPROTECTED > LIBEL > Element 4 > EXC to presumption > QUALIFIED PRIVILEG > (2)
- Fair & True Report on Gov’t Process W/o commentary
“a case is filed with PO for corrupting” - not libelous because of 2
“a case is filed with PO for corrupting and i think he is this a criminal” - effect is there is PRESUMPTION OF MALICE (not malice established but presumption)
MAY 10
MAY 10
section 4 “ No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
> prsumption of unconsitutaionl > facial challenge
what are the modes of questoining
- overbreadth doctrine
2 void for vagueness principle
> facial challenge > mode of quesioning > overbreadth doctrine
what is it ?
when it unnecessarily sweeps the subject of regulation.
if the law applies the restriction in a too broad subject matter such that even if it’s not yet applied, it can be declared uncsontitutional by virtue of the overbreath doctrine
> facial challenge > mode of questioning > void-for-vagueness principle
what is it?
features a finding that the law does not provide a discernable standard that leads an ordinary man to guess how the law is to be interpreted and understood
> presumed unconsti > questoined in court > mode of questoining (1) as applied & (2) facial challenge > (1) content-neutral & (2) content-based) >
how do the courts court deal with content-NEUTRAL (i couldn’t read the writing
intermidiary review (
> presumed unconsti > questoined in court > mode of questoining (1) as applied & (2) facial challenge > (1) content-neutral & (2) content-based) >
how do the courts court deal with content-BASED (i couldn’t read the writing
strict scrutiny
FREEDOM OF ASSEMBLY
FREEDOM OF ASSEMBLY
we are allowed to petititon the govv’t redress to our grievances because of this freedom of assembly.
“… the right of the people peaceably to assemble and petition the government for redress of grievances.”
immediately, it asks IF IT HAS TWO OF THE REQUIRMENTS:
- what are the content-based regulation
- what are the content-neutral regulation
- what are the content-based regulation
- what are the content-neutral regulation
> content-based regulation
the assembly is allowed as long as its
- peaceful for legal purposes
- peaceful but must not be** illegal** (getting high together)
- must not involve illegal acts (padlocking the gate)
any violation is not freedom of assembly so state can punish them
freedom of assembly > 1st requirement content-based regulation > 2nd requirement content-neutral regulation
legal basis of BP 880 relevant provisiont
-GEN RULE
- requires before we are able to exercise our freedom validly. we first need PERMIT
EXC
freedom of assembly > 1st requirement content-based regulation > 2nd requirement content-neutral regulation
> EXC of BP 880 GEn’s Rule
- Freedom Park designated by law/ordinance
- When it is done in a private property with consent of the owner
- Within the premises of government-owned and operated schools or universities subject to internal rules & regulations
in these cases, no need for permit
note
- if a public university, in its rules & reg prohibits assembly, that is unconstitutional and can be questioned
an assembly with permit then the permit was revoked, what is the effect?
if the place was declared a freedom park thru law/ordinance, then the permit was
under BP 880, it is the mayor who has the power to issue permits.
If he does not permit, then can be questioned for grave abuse of discretion amounting to lack of JD
