Pioneering. Paperless 2 Law on Mass Media. Historical context, right to a free press, right to free speech. Justice Holmes 1919, Justice Malcolm 1918 (does NOT include the handling faculty member’s Lecture, notes, and discussion)
Philippine Supreme Court on right of access to info 1989 to 2019
ABRAMS VS. UNITED STATES
250 U.S. 616 (10 November 1919)
(For students who are text-challenged, the following is a 2-minute animated cartoon-format of the case) (credits: as stated and as embedded on the video)
ABRAMS VS. UNITED STATES
250 U.S. 616 (10 November 1919)
Excerpted by blog admin
Majority Opinion by Justice Clarke (Excerpts)
(Justice Holmes’ Dissenting appears here after the majority opinion, pls scroll down)
FACTS (excerpted, verbatim): “All of the five defendants were born in Russia; intelligent, had considerable schooling, and, at the time they were arrested, they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and, of these, three frankly avowed that they were “rebels,” “revolutionists,” “anarchists,” that they did not believe in government in any form, and they declared that they had no interest whatever in the Government of the United States. The fourth defendant testified that he was a “socialist,” and believed in “a proper kind of government, not capitalistic,” but, in his classification, the Government of the United States was “capitalistic.”
“(T)he defendants had united to print and distribute the described circulars, and that five thousand of them had been printed and distributed about the 22nd day of August, 1918. The group had a meeting place in New York City, in rooms rented by defendant Abrams under an assumed name, and there the subject of printing the circulars was discussed about two weeks before the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed, and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City.xxx
“The first of the two articles attached to the indictment is conspicuously headed, “The Hypocrisy of the United States and her Allies.” After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our Government in general, saying:
“His [the President’s] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.”
“He [the President] is too much of a coward to come out openly and say: ‘We capitalistic nations cannot afford to have a proletarian republic in Russia.'”
Among the capitalistic nations, Abrams testified, the United States was included.
Growing more inflammatory as it proceeds, the circular culminates in:
“The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!”
“Yes! friends, there is only one enemy of the workers of the world and that is CAPITALISM.”
This is clearly an appeal to the “workers” of this country to arise and put down by force the Government of the United States which they characterize as their “hypocritical,” “cowardly” and “capitalistic” enemy.
“Awake! Awake! you Workers of the World!”
The second of the articles was printed in the Yiddish language and, in the translation, is headed, “Workers — Wake up.” After referring to “his Majesty, Mr. Wilson, and the rest of the gang; dogs of all colors,” it continues:
“Workers, Russian emigrants, you who had the least belief in the honesty of our Government,” which defendants admitted referred to the United States Government, “must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.”
The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.
It goes on:
“With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.”
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans, and not to work in ammunition factories where their work would produce “bullets, bayonets, cannon” and other munitions of war the use of which would cause the “murder” of Germans and Russians.
Again, the spirit becomes more bitter as it proceed to declare that —
“America and her Allies have betrayed (the Workers). Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia.”
“Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the Government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of Revolution.”xxx
This purpose is emphasized in the next paragraph, which reads:
“Do not let the Government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.”
After more of the same kind, the circular concludes:
“Woe unto those who will be in the way of progress. Let solidarity live!”
It is signed, “The Rebels.”
this article concludes:
“Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men and other revolutionary organizations, Unite for action, and let us save the Workers’ Republic of Russia,”
“Know you lovers of freedom that, in order to save the Russian revolution, we must keep the armies of the allied countries busy at home.” xxx
The remaining article, after denouncing the resident for what is characterized as hostility to the Russian revolution, continues:
“We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia.”
It concludes with this definite threat of armed rebellion:
“If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution.”
The majority concludes: “(T)he plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe xxx” Conviction is AFFIRMED, with sentences of 20 years imprisonment.
ISSUE: Whether or not such utterances/ articles were an exercise of free speech protected by the Constitution?
HELD: The majority held: No. Twenty years of imprisonment AFFIRMED.
(the five were sentenced to twenty years’ imprisonment); with a dissent from Justice Oliver Wendell Holmes.
Ratio Decidendi of the Majority (but see Dissent of J. Holmes): These excerpts sufficiently show that, while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our Government’s sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war.
It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans, and not to work in ammunition factories where their work would produce “bullets, bayonets, cannon” and other munitions of war the use of which would cause the “murder” of Germans and Russians. Xxx These excerpts sufficiently show that, while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our Government’s sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war.
“Conviction for violation of the Espionage Act for conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: in the first count, “disloyal, scurrilous and abusive language about the form of Government of the United States;” in the second count, language “intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute;” and in the third count, language “intended to incite, provoke and encourage resistance to the United States in said war,” and in the fourth count that the defendants conspired,”when the United States was at war with the Imperial German Government, unlawfully and willfully, by utterance, writing, printing and publication, to urge, incite and advocate curtailment of production of things and products, to-wit, ordnance and ammunition, necessary and essential to the prosecution of the war” is AFFIRMED, with sentences of 20 years imprisonment.
JUSTICE OLIVER WENDELL HOLMES DISSENTING (” xxx (W)hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. xxx but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution …” -Justice Holmes
Excerpted by blog admin
Justice Holmes, dissenting (Excerpts)
“The first of these leaflets says that the President’s cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington. xxx that “German militarism combined with allied capitalism to crush the Russian revolution ” — goes on that the tyrants of the world fight each other until they see a common enemy — working class enlightenment, when they combine to crush it, and that now militarism and capitalism combined, though not openly, to crush the Russian revolution. It says that there is only one enemy of the workers of the world, and that is capitalism; that it is a crime for workers of America to fight the workers’ republic of Russia, and ends “Awake! Awake, you Workers of the World, Revolutionists!” A note adds:
“ “It is absurd to call us pro-German. We hate and despise German militarism more than do you hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House.”
“The other leaflet, headed “Workers — Wake Up,” with abusive language says that America together with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the Bolshevik, and that this time the hypocrites shall not fool the Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must spit in the face of the false military propaganda by which their sympathy and help to the prosecution of the war have been called forth, and says that, with the money they have lent or are going to lend, “they will make bullets not only for the Germans, but also for the Workers Soviets of Russia,” and further,
“ “Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans,[p626] but also your dearest, best, who are in Russia and are fighting for freedom.”
“It then appeals to the same Russian emigrants at some length not to consent to the “inquisitionary expedition to Russia,” and says that the destruction of the Russian revolution is “the politics of the march to Russia.” The leaflet winds up by saying “Workers, our reply to this barbaric intervention has to be a general strike!” and, after a few words on the spirit of revolution, exhortations not to be afraid, and some usual tall talk ends, “Woe unto those who will be in the way of progress. Let solidarity live! The Rebels.”
“…(T)hese pronouncements in no way attack the form of government of the United States, or that they do not support either of the first two counts. xxx (T)he suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war xxx But to make the conduct criminal, that statute requires that it should be “with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.” It seems to me that no such intent is proved.
“ … (T)he word intent … means no more than knowledge at the time of the act that the consequences said to be intended will ensue. xxx But, when words are used exactly, a deed is not done with intent… unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind.
“It seems to me that this statute must be taken to use its words in a strict and accurate sense. xxx They would be absurd in any other. A patriot xxx might advocate curtailment with success, yet, even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. xxx (L)et me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution, that Congress shall make no law abridging the freedom of speech.
“xxx (T)he United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.
“But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion xxx Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. xxx An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.
“xxx (I)t is evident , it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government — not to impede the United States in the war that it was carrying on…
“(R)esistance to the United States means some forcible act of opposition to some proceeding of the United States in pursuance of the war. I think the intent must be the specific intent xxx no such intent was proved or existed in fact. xxx there is no hint at resistance to the United States xxx
“(T)wenty years’ imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper, I will add, even if what I think the necessary intent were shown, the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges, but for the creed that they avow — a creed that I believe to be the creed of ignorance and immaturity when honestly held xxx
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. xxx but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.
MR. JUSTICE BRANDEIS concurs with the foregoing opinion.
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US vs. Bustos et al
G.R. No. L-12592 ( 8 March 1918)
EXCERPTED BY BLOG ADMIN
Justice Malcolm (“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. xxx
“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.”)
Justice Malcolm (excerpts)
“xxx 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. xxx 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
“xxx 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 xxx
“(W)e 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. , 195 U. S., 100; Serra vs. Mortiga , 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 , 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 , 175 U. S., 409, 411.)
“ xxx 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 xxx”
“ xxx 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.”
Arellano, C.J., Johnson, Araullo, Street, and Fisher, JJ., concur.
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RIGHTS AND PRIVILEGES OF MEDIA PRACTITIONERS
RIGHT OF ACCESS TO INFORMATION ON MATTERS OF PUBLIC CONCERN
WHAT CONSTITUTES PUBLIC RECORDS
Notes of marichulambino on what constitutes “public records”:
Constitutional basis: Art. III Sec. 7: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”
Public records include documents required by law to be published, documents in the custody of government agencies charged by law with the upkeep of such records, documents affecting public funds, official transcript on the workings of government, documents evidencing rights to property, the grant of status, rights and privileges, etc.but excluding records and documents that contain personal information as defined under the Data Privacy Act.
PUBLIC RECORDS include the following (categorization by marichulambino, this enumeration is not exclusive and not exhaustive)
Documents affecting public funds,
The official transcript on the workings of government, etc. such as:
records containing information on foreign loans;
records & books of account of the three branches of government and all their departments and offices
the COA audit of such records and books of account
bidding documents, government contracts, government vouchers
Statement of Assets, Liabilities, and Networth
the Journal of Congress
Documents affecting Property:
Land title registration records
mortgage registration records
articles of incorporation/ corporate gen info sheets
shares of stocks registration records
business registration records & permits
vehicle registration records
Documents affecting rights and privileges or status, etc.
7 thoughts on “Pioneering. Paperless 2 Media Law Hist., Philo: Rt Free Press. Basis (does NOT include the Lecture itself) Update Rt to Info 2019”
•Ricardo Valmonte v. Feliciano Belmonte
•GR No. 74930
•23 February 1989
Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent be directed:
a)to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or
b)to furnish petitioners with certified true copies of the documents evidencing their respective loans; and/or
c)to allow petitioners access to the public records for the subject information
On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, “(W)e are now considering ourselves free… to do whatever action necessary within the premises to pursue our desired objective in pursuance of public interest.
A second requisite must be met before the right to information may be enforced through mandamus proceedings, viz., that the information sought must not be among those excluded by law.
Whether or not Valmonte, et. al. are entitled, by virtue of their constitutional right to information, to inquire upon GSIS records on loans given by the former First Lady Imelda Marcos to Batasang Pambansa members belonging to the UNIDO and PDP-Laban political parties.
Respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues.
The right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS.
Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information the disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their professions.
The public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern.
The public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern.
The Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people’s right to be informed pursuant to the constitutional policy of transparency in government dealings.
GONZALES vs KATIGBAK G.R. No. L-69500 July 22, 1985
Retrieved from: https://www.lawphil.net/judjuris/juri1985/jul1985/gr_l69500_1985.html
Antonio Gonzales, president of Malaya films, claims that his film being rated for adults only and the requirement that some scenes be deleted by a subcommittee of the movie review board were without basis and muffled artistic expression.
There was no basis for the speculations made by the board to justify its rating of the film. After appealing to the film movie review board, the latter only reinforced the decision of the subcommittee.
After appealing to the Supreme Court, the movie review board claimed that the requirement to delete some scenes was removed and that the submission of the master negative was no longer necessary, but the rating of adults only still withholds.
Issue: Was the rating given with grave abuse of discretion?
Held: No. The petition was dismissed due to lack of votes.
“Motion pictures are important both as a medium for the communication of ideas and the expression of the artistic impulse.” The value of films as a carrier of public opinion is lessened because they are also designed to entertain and inform. The clear divide between what involves knowledge and what involves pleasure does not exist as it would be a diminution to the right of self-expression.
Press freedom allows the public discussion of any matter without censorship or punishment, but it is not absolute, as the state has the power to intervene and limit if there is a clear and present danger or evil.
Censorship is not all there is to free speech or press, because it would be an emasculation of basic rights. The opinion of the court is that the powers of the board be limited to classification of films, to abide by the rule that freedom of expression is the rule and restrictions are the exemption.
The test to determine if freedom of expression may be limited is a clear and present danger which the State has, and has the right, to prevent. Censorship to films, theatrical productions, radio scripts, television programs, and other such media is only allowable under proof of clear and present danger to public morals, health, or interest.
The law frowns on obscenity, however there is some difficulty in determining what is obscene. As in the approach followed in Justice Brennan in Roth v. United States: The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Such a test was rejected because it was restrictive of the freedoms of speech and press.
Roth- sex and obscenity are not synonymous. Obscene material portrays sex in a manner which appeals to prurient interest. The portrayal of sex in literature and science works is not sufficient reason to deny protection of freedom of speech and press, although sex remains a problem of human interest and public concern.
Executive Order No. 876, reference was made to respondent Board “applying contemporary Filipino cultural values as standard. As far as the question of sex and obscenity are concerned, it is constitutionally mandated that the arts and letters “shall be under the patronage of the State. Therefore, it would be less than true to its function if it invaded the sphere of autonomy an artist enjoys.
On the question of obscenity, a standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid unconstitutionality. Justice Malcolm: “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.”
The court concludes that there was an abuse of discretion, taking to account all the petitioners went through in order for the film to be classified as adults only without scene deletions, but due to the lack of votes, it is hard to maintain that such an abuse can be considered grave.
The ruling is limited to obscenity applicable to motion pictures, as television calls for a less liberal approach because any member of the family has easy access, compared to movies where patrons have to pay.
(2) Whether or not the closure of DYRE is a violation of the Constitutional Right of Freedom of Expression.
The court stresses that while there is no controlling and precise definition of Due Process, it gives an unavoidable standard that government actions must conform in order that deprivation of life, liberty and property is valid.
Case digest on Francisco Chavez vs. Raul M. Gonzales and NTC | G.R. No. 168338 | February 15, 2008
This is a petition for the writs of certiorari and prohibition to set aside “acts, issuances, and orders” of respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National Telecommunications Commission (NTC), particularly an NTC “press release” dated 11 June 2005
On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner in the 2004 presidential elections. President Arroyo received a total of 12,905,808 votes.
On 6 June 2005, Presidential spokesperson Ignacio Bunye (Bunye) held a press conference in Malacañang Palace, where he played before the presidential press corps two compact disc recordings of conversations between a woman and a man.
However, on 9 June 2005, Bunye backtracked and stated that the woman’s voice in the compact discs was not President Arroyo’s after all. Respondent Gonzalez ordered the NBI to investigate media organizations
On 11 June 2005, the NTC issued a press release warning radio and television stations. On 14 June 2005, NTC officers met with officers of the broadcasters group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and KBP issued a joint press statement expressing commitment to press freedom
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the “acts, issuances, and orders” of the NTC and respondent Gonzalez (respondents) on the following grounds: (1) respondents’ conduct violated freedom of expression and the right of the people to information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC acted ultra vires when it warned radio and television stations against airing the Garci Tapes.
Chavez contended his status as a citizen asserting the enforcement of a public right vested him with sufficient interest to maintain this suit. Petitioner also contests respondents’ claim that the NTC press release of 11 June 2005 is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-Wiretapping Law”
Will a purported violation of law such as the Anti-Wiretapping Law justify straitjacketing the exercise of freedom of speech and of the press?
Did the mere press statements of respondents DOJ Secretary and the NTC constitute a form of content-based prior restraint that has transgressed the Constitution?
Government Action in the Present Case
The NTC warning relies on two grounds:
First, the airing of the Garci Tapes “is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to radio and TV stations.”
Second, the Garci Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain false information or willful misrepresentation.
ISSUES ON THE GROUNDS
The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that may be subject to prior restraint.
The NTC did not conduct any hearing in reaching its conclusion.
The NTC claims that the Garci Tapes, “after a prosecution or the appropriate investigation,” may constitute “false information and/or willful misrepresentation.” However, the NTC does not claim that such possible false information or willful misrepresentation constitutes misleading commercial advertisement.
The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC also concedes that only “after a prosecution or appropriate investigation” can it be established that the Garci Tapes constitute “false information and/or willful misrepresentation.”
NO, a purported violation of law such as the Anti-Wiretapping Law will NOT justify straitjacketing the exercise of freedom of speech and of the press.
YES, the mere press statements of respondents DOJ Secretary and the NTC constituted a form of content-based prior restraint that has transgressed the Constitution.
REASONING BEHIND DECISION
“We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press….There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press”
“For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State.”
“The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press.”
Lawmaker backs down as reporter stands ground on sources
REPUBLIC ACT NO. 1477 (SHIELD LAW)
“AN ACT EXPANDING THE COVERAGE OF EXEMPTIONS FROM REVEALING THE SOURCE OF PUBLISHED NEWS OR INFORMATION OBTAINED IN CONFIDENCE BY INCLUDING JOURNALISTS FROM BROADCAST, AND NEWS AGENCIES, AMENDING FOR THE PURPOSE SECTION 1 OF REPUBLIC ACT NO. 53, AS AMENDED BY REPUBLIC ACT NO. 1477”
Cavite Representative Elpidio Barzaga Jr. threatened to cite Christine Herrera in contempt due to non disclosure of sources in her news articles.
On 9 June 2015, Cavite Representative Elpidio Barzaga Jr. threatened to cite Christine Herrera in contempt after she refused to reveal sources of news articles exposing alleged bribery to members of the House of Representatives to pass the Bangsomoro Basic Law
The articles claimed that fugitive Chinese national Wang Bo gave 440 million pesos to pay off 292 lawmakers to favor the BBL.
Herrera stood by her articles claiming that they came from credible sources and solid information.
“I stand by what I have written in my articles. They are based on credible sources and solid evidence. I (exerted) efforts to verify and corroborate the story before submitting for publication,” Herrera said.
The articles stated that bags of cash were unloaded at the rear entrance of the House of Representatives and was taken to the office of Speaker Feliciano Belmonte Jr.
CCTV footage of the incident that occured between the 25th to the 27th of May had been overwritten.
Barzaga tried to lead Herrera into identifying whatever information about her sources however Herrera kept on citing the Sotto law to protect her informants.
“I am entitled to invoke Republic Act 53 as amended by Republic Act 1477 also known as the Shield Law or Sotto Law to refuse to reveal the identities of my sources premeditated upon the protection of the freedom of expression and aimed at promoting freedom of information to encourage intelligence discourse,”
On 7 July 2015, Barzaga stating that due to the Herrera’s admission of not approaching him for his side of the story, he announced that he will no longer pursue his motion to cite her in contempt.
Whether or not journalists can be compelled to reveal their sources?
No, unless it has been determined that such information threatens the security of the state. RA 11458 expanded the coverage of RA 53 of 1946 as amended by RA 1477 stating that:
“Without prejudice to his liability under the civil and criminal laws, any publisher, owner, or duly recognized or accredited journalist, writer, reporter, contributor, opinion writer, editor, columnist, manager, media practitioner involved in the writing, editing, production, and dissemination of news for mass circulation, of any print, broadcast, wire service organization, or electronic mass media, including cable TV and its variants, cannot be compelled to reveal the source of any news items, report or information appearing or being reported or disseminated through said media, which was related in confidence to the abovementioned media practioners unless the court or the House of Representatives or the Senate or any committee of Congress finds that such revelation is demanded by the security of the State.”
Thus, it is important to note that this freedom is not absolute and could be restrained when state security demands it. This is done through subpoenas which compel persons to appear before them and provide testimony or documents that may aid in the investigation.
However, journalists have the right to question the validity of the threat to the security of the state.
“Will refusal to testify threaten the security of the State? Will lives be put in danger if we refuse to testify?”
Journalists who suspect that the subpoena will result in revealing their source can refuse to appear on the basis of freedom of the press.
Trust is of utmost importance to journalists and without it, information will be restricted and the news gathering rights of the media will be adversely curtailed
Notable quotes from Herrera
“A society who represses journalists ultimately represses the people.’ I brought out the basic principle which is that a free press is a foundation for a democracy. We rely on journalists to explain the actions if the government. If the government controls the journalist then it’s very difficult for citizens to hold government accountable,” Herrera said quoting former US president Obama.
“To take away the last vestiges of this protection will result in chilling effect of the freedom of the press sanctioned by the Constitution. To reveal the identities of my sources against their wishes is tantamount to betrayal of confidence by my valued informants. As [a] journalist I cannot overemphasize our reliance on this protection on hard-hitting and controversial news reports.”
chilling effect – the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction
LABOR CODE OF THE PHILIPPINES (as media practitioners)
GMA Network Inc., Petitioner, vs. Carlos P. Pabriga, Geoffrey F. Arias, Kirby N. Ocampo, Arnold L. Lagahit, and Armando A. Catubig, Respondents.
1.Private respondents were engaged by petitioner for the latter’s operations in the Technical Operations Center as Transmitter/VTR men, as Maintenance staff and as Cameramen.
2. On July 19 1999 due to the miserable working conditions private respondents were forced to file a complaint against petitioner before the NLRC Regional Arbitration Branch No. VII Cebu City.
3. Private respondents filed an amended complaint raising the following additional issues of: 1) Unfair Labor Practice; 2) Illegal dismissal; and 3) Damages and Attorneys fees.
4. An amicable settlement between the parties was set but the same proved to be futile.
5. The Labor Arbiter dismissed the complaint of respondents for illegal dismissal and unfair labor practice, but held petitioner liable for 13th month pay.
6. The NLRC reversed the Decision of the Labor Arbiter, and held that: a) All complainants are regular employees with respect to the particular activity to which they were assigned, until it ceased to exist. As such, they are entitled to payment of separation pay computed at one (1) month salary for every year of service;
7. They are not entitled to overtime pay and holiday pay; and
8. They are entitled to 13th month pay, night shift differential and service incentive leave pay.
9. When Petitioner elevated the case to the CA via a Petition for Certiorari, it rendered its Decision denying the petition for lack of merit. Hence, this present Petition for Review on Certiorari.
Did the CA err in finding the respondents as regular employees of the petitioner?
Did the CA err in awarding separation pay to the respondents absent a finding that respondents were illegally dismissed?
Respondents claim that they are regular employees of petitioner GMA Network, Inc. The latter, on the other hand, interchangeably characterize respondents employment as project and fixed period/fixed-term employment.
ARTICLE 280 and 279.
“In sum, we affirm the findings of the NLRC and the Court of Appeals that respondents are regular employees of petitioner. As regular employees, they are entitled to security of tenure and therefore their services may be terminated only for just or authorized causes. Since petitioner failed to prove any just or authorized cause for their termination, we are constrained to affirm the findings of the NLRC and the Court of Appeals that they were illegally dismissed.
Since the respondents were illegally dismissed, they entitled to separation pay in lieu of reinstatement.
As regards night shift differential, the Labor Code provides that every employee shall be paid not less than ten percent (10%) of his regular wage for each hour of work performed between ten o’clock in the evening and six o’clock in the morning.
As employees of petitioner, respondents are entitled to the payment of this benefit in accordance with the number of hours they worked from 10:00 p.m. to 6:00 a.m., if any.
The matter of attorney’s fees cannot be touched once and only in the fallo of the decision, else, the award should be thrown out for being speculative and conjectural. In the absence of a stipulation, attorney’s fees are ordinarily not recoverable; otherwise, a premium shall be placed on the right to litigate. They are not awarded every time a party wins a suit.
In the case at bar, the factual basis for the award of attorney’s fees was not discussed in the text of NLRC Decision. Thus, the Court constrained to delete the same.”
Topic of discussion: Labor Rights of Media Workers
ABS-CBN vs. Nazareno et. al
G.R. No. 164156
September 26, 2006
Facts of the Case
Respondents Marlyn Nazareno, Merlou Guerzon, Jennifer Deiparine, and Josephine Lerasan are employed by petitioner ABS-CBN as production assistants (PAs) and they were assigned at the news and public affairs for different radio programs in Cebu Broadcasting Station. Respondents have a monthly compensation of P4,000. They were issued ABS-CBN employees’ identification cards and were required to work for a minimum of eight hours a day, including Sundays and holidays.They were under the control and supervision of Assistant Station Manager Dante J. Luzon, and News Manager Leo Lastimosa.
On December 19, 1996, petitioner and the ABS-CBN Rank-and-File Employees executed a Collective Bargaining Agreement (CBA) to be effective during the period from December 11, 1996 to December 11, 1999. However, since petitioner refused to recognize PAs as part of the bargaining unit, respondents were not included in the CBA.
On October 12, 2000, respondents filed a Complaint for Recognition of Regular Employment Status, Underpayment of Overtime Pay, Holiday Pay, Premium Pay, Service Incentive Pay, Sick Leave Pay, and 13th Month Pay with Damages against the petitioner before the National Labor Relations Commission (NLRC). The Labor Arbiter’s decision was affirmed by the NLRC. Court of Appeals also dismissed ABS-CBN’s (Petitioner) motion for reconsideration.
Whether or not the respondents were considered regular employees of ABS-CBN?
On July 30, 2001, the Labor Arbiter rendered judgment in favor of the respondents, and declared that they were regular employees of petitioner.
“We agree with respondents’ contention that where a person has rendered at least one year of service, regardless of the nature of the activity performed, or where the work is continuous or intermittent, the employment is considered regular as long as the activity exists, the reason being that a customary appointment is not indispensable before one may be formally declared as having attained regular status. “
Ratio Decidendi (R.D)
Article 280 of the Labor Code Provides
“REGULAR AND CASUAL EMPLOYMENT.—The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.”
In Universal Robina Corporation v. Catapang, the test to determine whether one is a regular employee is the foremost merit of the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer.
The Court states that “the test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing the need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, employment is considered regular, but only with respect to such activity and while such activity exists.”
In addition, it was elaborated in Magsalin v. National Organization of Working Men.
“Even while the language of the law might have been more definitive, the clarity of its spirit and intent, i.e., to ensure a “regular” worker’s security of tenure, however, can hardly be doubted. In determining whether employment should be considered regular or non-regular, the applicable test is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer.”
Respondents cannot be held as “program employees” as no evidence was presented to show that the duration and the scope of the project were specified at the time of their engagement. Thus, the employee-employer relationship is determined and has been proven between the petitioner and the respondents.