Chavez v Gonzales - US v Williams2.docx

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CHAVEZ V. GONZALES

EN BANC

G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,vs.RAL !. GONZALES, "# $"% &a'a&"(y a% ($e Se&re(ary o) ($e *e'ar(+e#( o)u%("&e- a# NA/IONAL /ELECO!!NICA/IONS CO!!ISSION N/C,

respondents.

* E C I S I O N

NO, C.J.

A. Precis

In this jurisdiction, it is established that freedom of the press is crucial and soinextricably woven into the riht to free speech and free expression, that any attemptto restrict it must be met with an examination so critical that only a daner that is clear and present would be allowed to curtail it.

Indeed, we have not wavered in the duty to uphold this cherished freedom. !e havestruc" down laws and issuances meant to curtail this riht, as in Adiong v.COMELEC ,# Burgos v. Chief of Staff ,$ Social Weather Stations v. COMELEC ,% andBayan v. Executive Secretary Ermita.& !hen on its face, it is clear that aovernmental act is nothin more than a na"ed means to prevent the free exercise of speech, it must be nullified.

B. The Facts

#. 'he case oriinates from events that occurred a year after the $((& national andlocal elections. )n *une +, $((+, ress -ecretary Inacio Bunye told reporters thatthe opposition was plannin to destabilie the administration by releasin anaudiotape of a mobile phone conversation alleedly between the resident of thehilippines, /loria 0acapaal Arroyo, and a hih1ran"in official of the Commissionon Elections 2C)0E3EC4. 'he conversation was audiotaped alleedly throuh wire1tappin.+ 3ater, in a Malacañang press briefin, -ecretary Bunye produced twoversions of the tape, one supposedly the complete version, and the other, a spliced,5doctored5 or altered version, which would suest that the resident had instructedthe C)0E3EC official to manipulate the election results in the resident6s favor. 7 Itseems that -ecretary Bunye admitted that the voice was that of resident Arroyo, butsubse8uently made a retraction. 9

$. )n *une 9, $((+, former counsel of deposed resident *oseph Estrada, Atty. Alanauia, subse8uently released an alleed authentic tape recordin of the wiretap.Included in the tapes were purported conversations of the resident, the :irst/entleman *ose 0iuel Arroyo, C)0E3EC Commissioner /arcillano, and the late-enator Barbers.;

%. )n *une ;, $((+, respondent <epartment of *ustice 2<)*4 -ecretary =aul

/onales warned reporters that those who had copies of the compact disc 2C<4 andthose broadcastin or publishin its contents could be held liable under the Anti1

!iretappin Act. 'hese persons included -ecretary Bunye and Atty. auia. >e alsostated that persons possessin or airin said tapes were committin a continuinoffense, subject to arrest by anybody who had personal "nowlede if the crime wascommitted or was bein committed in their presence.?

&. )n *une ?, $((+, in another press briefin, -ecretary /onales ordered theNational Bureau of Investiation 2NBI4 to o after media organiations !found to havecaused the s"read# the "laying and the "rinting of the contents of a ta"e! of analleed wiretapped conversation involvin the resident about fixin votes in the $((&national elections. /onales said that he was oin to start with I#4.#e(, a jointventure between the $""''"#e *a"y I#4u"rer a# G!A television networ",because by the very nature of the Internet medium, it was able to disseminate thecontents of the tape more widely. >e then expressed his intention of invitin theeditors and manaers of In89.net and /0A9 to a probe, and supposedly declared, 5I@have as"ed the NBI to conduct a tactical interroation of all concerned.5 #(

+. )n *une ##, $((+, the N'C issued this press release ##

N'C /IE- :AI= !A=NIN/ ') =A<I) AN< 'E3EI-I)N)!NE=-D)E=A')=- ') )B-E=E AN'I1!I=E'AIN/ 3A! AN<E='INEN' CI=C3A=- )N =)/=A0 -'AN<A=<-

xxx xxx xxx

'a"in into consideration the country6s unusual situation, and in order not tounnecessarily aravate the same, the N'C 7ar#% all radio stations andtelevision networ" ownersDoperators that the conditions of the authoriationand permits issued to them by /overnment li"e the rovisional AuthorityandDor Certificate of Authority explicitly provides that said companies shallnot use @their stations for the broadcastin or telecastin of false informationor willful misrepresentation. =elative thereto, it has come to the attention of the @N'C that certain personalities are in possession of alleed tapedconversations which they claim involve the resident of the hilippines and aCommissioner of the C)0E3EC reardin supposed violation of electionlaws.

'hese personalities have admitted that the taped conversations are productsof illeal wiretappin operations.

Considerin that these taped conversations have not been dulyauthenticated nor could it be said at this time that the tapes contain anaccurate or truthful representation of what was recorded therein, it is theposition of the @N'C that the continuous airin or broadcast of the saidtaped conversations by radio and television stations is a continuin violationof the Anti1!iretappin 3aw and the conditions of the rovisional AuthorityandDor Certificate of Authority issued to these radio and television stations. Ithas been subse8uently established that the said tapes are false andDor fraudulent after a prosecution or appropriate investiation, the concernedradio and television companies are hereby 7ar#e ($a( ($e"r broa&a%(a"r"#9 o) %u&$ )a%e "#)or+a("o# a#or 7")u+"%re're%e#(a("o# %$a be :u%( &au%e )or ($e %u%'e#%"o#, re;o&a("o#

a#or &a#&ea("o# o) ($e "&e#%e% or au($or"<a("o#% "%%ue (o ($e %a"&o+'a#"e%.



In addition to the above, the @N'C reiterates the pertinent N'C circulars onproram standards to be observed by radio and television stations. N'C0emorandum Circular ###1#$1;+ explicitly states, amon others, that 5allradio broadcastin and television stations shall, durin any broadcast or telecast, cut off from the air the speech, play, act or scene or other mattersbein broadcast or telecast the tendency thereof is to disseminate falseinformation or such other willful misrepresentation, or to propose andDor incite treason, rebellion or sedition.5 'he foreoin directive had beenreiterated by N'C 0emorandum Circular No. $$1;?, which, in addition

thereto, prohibited radio, broadcastin and television stations from usintheir stations to broadcast or telecast any speech, lanuae or scenedisseminatin false information or willful misrepresentation, or incitin,encourain or assistin in subversive or treasonable acts.

/$e =N/C> 7" #o( $e%"(a(e, a)(er ob%er;"#9 ($e re4u"re+e#(% o) ue'ro&e%%, (o a''y 7"($ )u )or&e ($e 'ro;"%"o#% o) %a" C"r&uar% a#($e"r a&&o+'a#y"#9 %a#&("o#% o# err"#9 ra"o a# (ee;"%"o# %(a("o#%a# ($e"r o7#er%o'era(or%.

7. )n *une #&, $((+, N'C held a "ao9ue with the Board of <irectors of the$a"isanan ng mga Brod%aster sa &ili"inas '$B&(. N'C alleedly assured the FBthat the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the riht to information. Accordinly, N'C and FB

issued a o"#( re%% S(a(e+e#( which states, amon others, that#$

G N'C respects and will not hinder freedom of the press and the riht toinformation on matters of public concern. FB H its members have alwaysbeen committed to the exercise of press freedom with hih sense of responsibility and discernin judment of fairness and honesty.

G N'C did not issue any 0C @0emorandum Circular or )rder constitutin arestraint of press freedom or censorship. 'he N'C further denies and doesnot intend to limit or restrict the interview of members of the opposition or free expression of views.

G !hat is bein as"ed by N'C is that the exercise of press freedom @be doneresponsibly.

G FB has proram standards that FB members will observe in the treatmentof news and public affairs prorams. 'hese include verification of sources,non1airin of materials that would constitute incitin to sedition andDor rebellion.

G 'he FB Codes also re8uire that no false statement or willfulmisrepresentation is made in the t reatment of news or commentaries.

G 'he supposed wiretapped tapes should be treated with sensitivity andhandled responsibly ivin due consideration to the process beinunderta"en to verify and validate the authenticity and actual content of thesame.5

C. The Petition

etitioner Chave filed a petition under =ule 7+ of the =ules of Court aainstrespondents -ecretary /onales and the N'C, 5prayin for the issuance of the writsof certiorari and prohibition, as extraordinary leal remedies, to annul voidproceedins, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.5#%

Allein that the acts of respondents are violations of the freedom on expression andof the press, and the riht of the people to information on matters of public concern, #&

petitioner specifically as"ed this Court

@:or @the nullification of acts, issuances, and orders of respondentscommitted or made since *une 7, $((+ until the present that curtail thepublic6s rihts to freedom of expression and of the press, and to informationon matters of public concern specifically in relation to information reardinthe controversial taped conversion of resident Arroyo and for prohibition of the further commission of such acts, and ma"in of such issuances, andorders by respondents. #+

=espondents#7 denied that the acts transress the Constitution, and 8uestionedpetitioner6s leal standin to file the petition. Amon the aruments they raised as tothe validity of the 5fair warnin5 issued by respondent N'C, is that broadcast mediaenjoy lesser constitutional uarantees compared to print media, and the warnin wasissued pursuant to the N'C6s mandate to reulate the telecommunications industry. #9

It was also stressed that 5most of the @television and radio stations continue, even tothis date, to air the tapes, but of late within the parameters areed upon between theN'C and FB.5 #;

D. The Procedural Threshold: Legal Standing

'o be sure, the circumstances of this case ma"e the constitutional challene peculiar.etitioner, who is not a member of the broadcast media, prays that we stri"e down theacts and statements made by respondents as violations of the riht to free speech,free expression and a free press. :or another, the recipients of the press statementshave not come forwardneither intervenin nor joinin petitioner in this action.Indeed, as a roup, they issued a joint statement with respondent N'C that does notcomplain about restraints on freedom of the press.

It would seem, then, that petitioner has not met the re8uisite leal standin, havinfailed to allee 5such a personal sta"e in the outcome of the controversy as to assurethat concrete adverseness which sharpens the presentation of issues upon which theCourt so larely depends for illumination of difficult constitutional 8uestions.5 #?

But as early as half a century ao, we have already held that where seriousconstitutional 8uestions are involved, 5the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushin aside if we must, technicalities of procedure.5 $( -ubse8uently, this Court has repeatedly andconsistently refused to wield procedural barriers as impediments to its addressin andresolvin serious leal 8uestions that reatly impact on public interest, $# in "eepinwith the CourtJs duty under the #?;9 Constitution to determine whether or not other branches of overnment have "ept themselves within the limits of the Constitutionand the laws and that they have not abused the discretion iven to them.



'hus, in line with the liberal policy of this Court on locus standi when a case involvesan issue of overarchin sinificance to our society,$$ we therefore brush asidetechnicalities of procedure and ta"e coniance of this petition,$% seein as it involvesa challene to the most exalted of all the civil rihts, the freedom of expression. /$e'e("("o# ra"%e% o($er "%%ue% "?e ($e e@(e#( o) ($e r"9$( (o "#)or+a("o# o) ($e'ub"&. I( "% )u#a+e#(a, $o7e;er, ($a( 7e #ee #o( are%% a "%%ue% bu( o#y($e +o%( e&"%";e o#e 7$"&$ "# ($e &a%e a( bar "% 7$e($er ($e a&(% o) ($ere%'o#e#(% abr"9e )reeo+ o) %'ee&$ a# o) ($e 're%%.

u( a%"e )ro+ ($e 'r"+or"a "%%ue o) e(er+"#"#9 7$e($er )ree %'ee&$ a#)reeo+ o) ($e 're%% $a;e bee# "#)r"#9e, ($e &a%e a( bar a%o 9";e% ($"% Cour(($e o''or(u#"(y 1 (o "%(" ($e e%%e#&e o) )reeo+ o) %'ee&$ a# o) ($e 're%%#o7 be&oue by ($e ;a9ar"e% o) +o($er$oo %(a(e+e#(%- 2 (o &ar")y ($e(y'e% o) %'ee&$e% a# ($e"r "))er"#9 re%(ra"#(% ao7e by a7- 3 (o "%&u%%($e &ore &o#&e'(% o) 'r"or re%(ra"#(, &o#(e#(B#eu(ra a# &o#(e#(Bba%ere9ua("o#% a# ($e"r &o#%("(u("o#a %(a#ar o) re;"e7- (o e@a+"#e ($e$"%(or"&a "))ere#&e "# ($e (rea(+e#( o) re%(ra"#(% be(7ee# 'r"#( a# broa&a%(+e"a a# %(re%% ($e %(a#ar o) re;"e7 9o;er#"#9 bo($- a# 5 (o &aa((e#("o# (o ($e o#9o"#9 burr"#9 o) ($e "#e% o) "%("#&("o# be(7ee# 'r"#( a#broa&a%( +e"a.

E. Re-exaining The la! on "reedo o" s#eech$o" ex#ression and o" the #ress

)o la* shall +e "assed a+ridging the freedom of s"eech# of ex"ression# or of the "ress# or the right of the "eo"le "eacea+ly to assem+le and "etitionthe government for redress of grievances.$&

:reedom of expression has ained reconition as a fundamental principle of everydemocratic overnment, and iven a preferred riht that stands on a hiher level thansubstantive economic freedom or other liberties. 'he conate rihts codified by ArticleIII, -ection & of the Constitution, copied almost verbatim from the :irst Amendment of the .-. Bill of =ihts,$+ were considered the necessary conse8uence of republicaninstitutions and the complement of free speech.$7 'his preferred status of free speechhas also been codified at the international level, its reconition now enshrined ininternational law as a customary norm that binds all nations.$9

In the hilippines, the primacy and hih esteem accorded freedom of expression is afundamental postulate of our constitutional system. $; 'his riht was elevated toconstitutional status in the #?%+, the #?9% and the #?;9 Constitutions, reflectin our own lesson of history, both political and leal, that freedom of speech is anindispensable condition for nearly every other form of freedom.$? 0oreover, our history shows that the strule to protect the freedom of speech, expression and thepress was, at bottom, the strule for the indispensable preconditions for the exerciseof other freedoms.%( :or it is only when the people have unbridled access toinformation and the press that they will be capable of renderin enlihtened judments. In the oft18uoted words of 'homas *efferson, we cannot both be free andinorant.

E.%. A&straction o" Free S#eech

-urroundin the freedom of speech clause are various concepts that we haveadopted as part and parcel of our own Bill of =ihts provision on this basic freedom. %#

!hat is embraced under this provision was discussed exhaustively by the Court in,onales v. Commission on Elections, %$ in which it was held

KAt the very least, free speech and free press may be identified with theliberty to discuss publicly and truthfully any matter of public interest withoutcensorship and punishment. 'here is to be no previous restraint on thecommunication of views or subse8uent liability whether in libel suits,prosecution for sedition, or action for damaes, or contempt proceedinsunless there be a clear and present daner of substantive evil that Conresshas a riht to prevent. %%

,onales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assurin individual self1fulfillmentL of attainin the truthL of assurin participation by the people in social,includin political, decision1ma"inL and of maintainin the balance between stabilityand chane.%& As early as the #?$(s, the trend as reflected in hilippine and Americandecisions was to reconie the broadest scope and assure the widest latitude for thisconstitutional uarantee. 'he trend represents a profound commitment to the principlethat debate on public issue should be uninhibited, robust, and wide1open. %+

:reedom of speech and of the press means somethin more than the riht to approveexistin political beliefs or economic arranements, to lend support to officialmeasures, and to ta"e refue in the existin climate of opinion on any matter of publicconse8uence.%7 !hen atrophied, the riht becomes meaninless.%9 'he riht belonsas well 11 if not more M to those who 8uestion, who do not conform, who differ. %; 'heideas that may be expressed under this freedom are confined not only to those thatare conventional or acceptable to the majority. 'o be truly meaninful, freedom of speech and of the press should allow and even encourae the articulation of theunorthodox view, thouh it be hostile to or derided by othersL or thouh such view5induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to aner.5%? 'o paraphrase *ustice >olmes, it is freedom for thethouht that we hate, no less than for the thouht that arees with us. &(

'he scope of freedom of expression is so broad that it extends protection to nearly allforms of communication. It protects speech, print and assembly reardin secular aswell as political causes, and is not confined to any particular field of human interest.'he protection covers myriad matters of public interest or concern embracin all

issues, about which information is needed or appropriate, so as to enable members of society to cope with the exiencies of their period. 'he constitutional protectionassures the broadest possible exercise of free speech and free press for reliious,political, economic, scientific, news, or informational ends, inasmuch as theConstitutionJs basic uarantee of freedom to advocate ideas is not confined to theexpression of ideas that are conventional or shared by a majority.

'he constitutional protection is not limited to the exposition of ideas. 'he protectionafforded free speech extends to speech or publications that are entertainin as wellas instructive or informative. -pecifically, in Eastern Broadcasting Cor"oration'-/E( v. -ans,&# this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speechand of expression.

!hile all forms of communication are entitled to the broad protection of freedom of expression clause, ($e )reeo+ o) )"+, (ee;"%"o# a# ra"o broa&a%("#9 "%



%o+e7$a( e%%er "# %&o'e ($a# ($e )reeo+ a&&ore (o #e7%'a'er% a# o($er 'r"#( +e"a, a% 7" be %ub%e4ue#(y "%&u%%e.

E.'. Di""erentiation: The Liits ( Restraints o" Free S#eech

:rom the lanuae of the specific constitutional provision, it would appear that theriht to free speech and a free press is not susceptible of any limitation. But therealities of life in a complex society preclude a literal interpretation of the provisionprohibitin the passae of a law that would abride such freedom. :or freedom of expression is not an absolute, &$ nor is it an 5unbridled license that ives immunity for

every possible use of lanuae and prevents the punishment of those who abuse thisfreedom.5

/$u%, a %'ee&$ are #o( (rea(e ($e %a+e. -ome types of speech may besubjected to some reulation by the -tate under its pervasive police power, in order that it may not be injurious to the e8ual riht of others or those of the community or society.&% 'he difference in treatment is expected because the relevant interests of one type of speech, e.., political speech, may vary from those of another, e.g.#obscene speech. <istinctions have therefore been made in the treatment, analysis,and evaluation of the permissible scope of restrictions on various cateories of speech. && !e have ruled, for example, that in our jurisdiction slander or libel, lewdand obscene speech, as well as 5fihtin words5 are not entitled to constitutionalprotection and may be penalied.&+

0oreover, the techni8ues of reviewin alleed restrictions on speech 2overbreadth,vaueness, and so on4 have been applied differently to each cateory, either consciously or unconsciously. &7 A study of free speech jurisprudencewhether hereor abroadwill reveal that courts have developed different tests as to specific typesor cateories of speech in concrete situationsL i.e.# subversive speechL obscenespeechL the speech of the broadcast media and of the traditional print mediaL libelousspeechL speech affectin associational rihtsL speech before hostile audiencesLsymbolic speechL speech that affects the riht to a fair trialL and speech associatedwith rihts of assembly and petition. &9

/enerally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e.# 2a4 the a#9erou% (e#e#&y o&(r"#e whichpermits limitations on speech once a rational connection has been established

between the speech restrained and the daner contemplatedL

&;

2b4 the baa#&"#9 o) "#(ere%(% (e%(%, used as a standard when courts need to balance conflictin socialvalues and individual interests, and re8uires a conscious and detailed considerationof the interplay of interests observable in a iven situation of type of situationL &? and2c4 the &ear a# 're%e#( a#9er rue which rests on the premise that speech maybe restrained because there is substantial daner that the speech will l i"ely lead to anevil the overnment has a riht to prevent. 'his rule re8uires that the evilconse8uences souht to be prevented must be substantive, 5extremely serious andthe deree of imminence extremely hih.5 +(

As articulated in our jurisprudence, we have applied either the a#9erou% (e#e#&yo&(r"#e or &ear a# 're%e#( a#9er (e%( to resolve free speech challenes. 0orerecently, we have concluded that we have enerally adhered to the &ear a#'re%e#( a#9er (e%(. +#

E.). *n Focus: Freedo o" the Press

0uch has been written on the philosophical basis of press freedom as part of thelarer riht of free discussion and expression. Its practical importance, thouh, ismore easily rasped. It is the chief source of information on current affairs. It is themost pervasive and perhaps most powerful vehicle of opinion on public 8uestions. Itis the instrument by which citiens "eep their overnment informed of their needs,their aspirations and their rievances. It is the sharpest weapon in the fiht to "eepovernment responsible and efficient. !ithout a viilant press, the mista"es of everyadministration would o uncorrected and its abuses unexposed. As *ustice 0alcolmwrote in 0nited States v. Bustos+$

'he interest of society and the maintenance of ood overnment demand a fulldiscussion of public affairs. Complete liberty to comment on the conduct of public menis a scalpel in the case of free speech. 'he sharp incision of its probe relieves theabscesses of officialdom. 0en in public life may suffer under a hostile and unjustaccusationL the wound can be assuaed with the balm of clear conscience.

Its contribution to the public weal ma"es freedom of the press deservin of extraprotection. Indeed, the press benefits from certain ancillary rihts. 'he productions of writers are classified as intellectual and proprietary. ersons who interfere or defeatthe freedom to write for the press or to maintain a periodical publication are liable for damaes, be they private individuals or public officials.

E.+. Anato, o" Restrictions: Prior Restraint$ Content-eutral and Content- Based Regulations

hilippine jurisprudence, even as early as the period under the #?%+ Constitution, hasreconied four aspects of freedom of the press. 'hese are 2#4 freedom from prior restraintL 2$4 freedom from punishment subse8uent to publicationL +% 2%4 freedom of access to informationL +& and 2&4 freedom of circulation.++

Considerin that petitioner has arued that respondents6 press statement constitutesa form of impermissible prior restraint, a closer scrutiny of this principle is in order, aswell as its sub1specie of content1based 2as distinuished from content1neutral4reulations.

At this point, it should be noted that respondents in this case deny that their actsconstitute prior restraints. 'his presents a uni8ue tine to the present challene,considerin that the cases in our jurisdiction involvin prior restrictions on speech

never had any issue of whether the overnmental act or issuance actuall, constituted prior restraint. =ather, the determinations were always about whether therestraint was justified by the Constitution.

Be that as it may, the determination in every case of whether there is animpermissible restraint on the freedom of speech has always been based on thecircumstances of each case, includin the nature of the restraint. A# "# "(%a''"&a("o# "# our :ur"%"&("o#, ($e 'ara+e(er% o) ($"% 'r"#&"'e $a;e bee#e(&$e o# a &a%eB(oB&a%e ba%"%, a7ay% (e%(e by %&ru("#"<"#9 ($e 9o;er#+e#(a"%%ua#&e or a&( a9a"#%( ($e &"r&u+%(a#&e% "# 7$"&$ ($ey o'era(e, a# ($e#e(er+"#"#9 ($e a''ro'r"a(e (e%( 7"($ 7$"&$ (o e;aua(e.

Prior restraint refers to official overnmental restrictions on the press or other formsof expression in advance of actual publication or dissemination. +7 :reedom from prior restraint is larely freedom from overnment censorship of publications, whatever the



form of censorship, and reardless of whether it is wielded by the executive,leislative or judicial branch of the overnment. 'hus, it precludes overnmental actsthat re8uired approval of a proposal to publishL licensin or permits as prere8uisites topublication includin the payment of license taxes for the privilee to publishL andeven injunctions aainst publication. Even the closure of the business and printinoffices of certain newspapers, resultin in the discontinuation of their printin andpublication, are deemed as previous restraint or censorship. +9 Any law or official thatre8uires some form of permission to be had before publication can be made, commitsan infrinement of the constitutional riht, and remedy can be had at the courts.

/iven that deeply ensconced in our fundamental law is the hostility aainst all prior restraints on speech, and any act that restrains speech is presumed invalid,+; and5any act that restrains speech is hobbled by the presumption of invalidity and shouldbe reeted with furrowed brows,5 +? it is important to stress not all prior restraints onspeech are invalid. Cer(a"# 're;"ou% re%(ra"#(% +ay be 'er+"((e by ($eCo#%("(u("o#, but determined only upon a careful evaluation of the challened act asaainst the appropriate test by which it should be measured aainst.

>ence, it is not enouh to determine whether the challened act constitutes someform of restraint on freedom of speech. A distinction has to be made whether therestraint is 2#4 a &o#(e#(B#eu(ra reulation, i.e., merely concerned with the incidentsof the speech, or one that merely controls the time, place or manner, and under welldefined standardsL7( or 2$4 a &o#(e#(Bba%e restraint or censorship, i.e.# the

restriction is based on the subject matter of the utterance or speech.

7#

'he cast of therestriction determines the test by which the challened act is assayed with.

!hen the speech restraints ta"e the form of a &o#(e#(B#eu(ra re9ua("o#, only asubstantial overnmental interest is re8uired for its validity. 7$ Because reulations of this type are not desined to suppress any particular messae, they are not subject tothe strictest form of judicial scrutiny but an "#(er+e"a(e a''roa&$somewherebetween the mere rationality that is re8uired of any other law and the compellininterest standard applied to content1based restrictions.7% 'he (e%( is called"#(er+e"a(e because the Court will not merely rubberstamp the validity of a law butalso re8uire that the restrictions be narrowly1tailored to promote an important or sinificant overnmental interest that is unrelated to the suppression of expression.'he intermediate approach has been formulated in this manner

A overnmental reulation is sufficiently justified if it is within theconstitutional power of the /overnment, if it furthers an important or substantial overnmental interestL if the overnmental interest is unrelated tothe suppression of free expressionL and if the incident restriction on alleed@freedom of speech H expression is no reater than is essential to thefurtherance of that interest. 7&

)n the other hand, a overnmental action that restricts freedom of speech or of thepress ba%e o# &o#(e#( is iven the %(r"&(e%( %&ru("#y in liht of its inherent andinvasive impact. )nly when the challened act has overcome the &ear a# 're%e#(a#9er rue will it pass constitutional muster,7+ with the overnment havin theburden of overcomin the presumed unconstitutionality.

nless the overnment can overthrow this presumption, the &o#(e#(Bba%e restraint

will be struc" down.77

!ith respect to &o#(e#(Bba%e restrictions, the overnment must also show the typeof harm the speech souht to be restrained would brin about especially the ravityand the imminence of the threatened harm M otherwise the prior restraint will beinvalid. rior restraint on speech based on its content cannot be justified byhypothetical fears, 5but only by showin a substantive and imminent evil that hasta"en the life of a reality already on round.5 79 As formulated, 5the 8uestion in everycase is whether the words used are used in such circumstances and are of such anature as to create a clear and present daner that they will brin about thesubstantive evils that Conress has a riht to prevent. It is a 8uestion of proximity andderee.57;

'he reulation which restricts the speech content must also serve an important or substantial overnment interest, which is unrelated to the suppression of freeexpression. 7?

Also, the incidental restriction on speech must be no reater than what is essential tothe furtherance of that interest. 9( A restriction that is so broad that it encompassesmore than what is re8uired to satisfy the overnmental interest will be invalidated. 9#

'he reulation, therefore, must be reasonable and narrowly drawn to fit the reulatorypurpose, with the least restrictive means underta"en. 9$

'hus, when the prior restraint parta"es of a &o#(e#(B#eu(ra re9ua("o#, it issubjected to an intermediate review. A content1based reulation, 9% however, bears aheavy presumption of invalidity and is measured aainst the &ear a# 're%e#(a#9er rue. 'he latter will pass constitutional muster only if justified by a compellinreason, and the restrictions imposed are neither overbroad nor vaue. 9&

Applyin the foreoin, it is clear that the challened acts in the case at bar need tobe subjected to the &ear a# 're%e#( a#9er rue, as they are &o#(e#(Bba%ere%(r"&("o#%. 'he acts of respondents focused solely on but one objecta specificcontent fixed as these were on the alleed taped conversations between theresident and a C)0E3EC official. ndoubtedly these did not merely providereulations as to the time, place or manner of the dissemination of speech or expression.

E.. Dichoto, o" Free Press: Print /. Broadcast 0edia

:inally, comes respondents6 arument that the challened act is valid on the round

that broadcast media enjoys free speech rihts that are lesser in scope to that of printmedia. !e next explore and test the validity of this arument, insofar as it has beeninvo"ed to validate a content1based restriction on broadcast media.

/$e re9"+e% 're%e#(y "# 'a&e )or ea&$ (y'e o) +e"a "))er )ro+ o#e o($er.Contrasted with the reime in respect of boo"s, newspapers, maaines andtraditional printed matter, broadcastin, film and video have been subjected toreulatory schemes.

'he dichotomy between print and broadcast media traces its oriins in the nited-tates. 'here, broadcast radio and television have been held to have "+"(e :irst Amendment protection,9+ and .-. Courts have e@&ue broadcast media from theapplication of the 5strict scrutiny5 standard that they would otherwise apply to content1based restrictions.97 Accordin to .-. Courts, the ($ree +a:or rea%o#% whybroadcast media stands apart from print media are 2a4 the scarcity of the fre8uencies



by which the medium operates @i.e., airwaves are physically limited while printmedium may be limitlessL 99 2b4 its 5pervasiveness5 as a mediumL and 2c4 its uni8ueaccessibility to children.9; Because cases involvin broadcast media need not follow5precisely the same approach that @.-. courts have applied to other media,5 nor o5so far as to demand that such reulations serve compellin6 overnment interests,59?

($ey are e&"e o# 7$e($er ($e D9o;er#+e#(a re%(r"&("o#D "% #arro7y (a"ore(o )ur($er a %ub%(a#("a 9o;er#+e#(a "#(ere%(,D;( or ($e "#(er+e"a(e (e%(.

As pointed out by respondents, hilippine jurisprudence has also echoed adifferentiation in treatment between broadcast and print media. Ne;er($ee%%, a

re;"e7 o) $""''"#e &a%e a7 o# broa&a%( +e"a 7" %$o7 ($a(a% 7e $a;ee;"a(e 7"($ ($e A+er"&a# &o#&e'("o# o) ($e " o) R"9$(% ;# 7e "?e7"%e "#o( ao'( e# asse ($e .S. &o#&e'("o# o) free speech as it relates to broadcastmedia, 'ar("&uary a% (o 7$"&$ (e%( 7ou 9o;er# &o#(e#(Bba%e 'r"or re%(ra"#(%.

)ur cases show two distinct features of this dichotomy. First$ the difference intreatment, in the main, is in the reulatory scheme applied to broadcast media that isnot imposed on traditional print media, and narrowly confined to unprotected speech2e.g.# obscenity, pornoraphy, seditious and incitin speech4, or is based on acompellin overnment interest that also has constitutional protection, such asnational security or the electoral process.

Second$ reardless of the reulatory schemes that broadcast media is subjected to,the Court has consistently held that the clear and present daner test applies tocontent1based restrictions on media, without ma"in a distinction as to traditional printor broadcast media.

'he distinction between broadcast and traditional print media was first enunciated inEastern Broadcasting Cor"oration '-/E( v. -ans,;$ wherein it was held that !1a2ll forms of media# *hether "rint or +roadcast# are entitled to the +road "rotection of thefreedom of s"eech and ex"ression clause. 3he test for limitations on freedom of ex"ression continues to +e the clear and "resent danger ruleK5;%

-ans was a case filed to compel the reopenin of a radio station which had beensummarily closed on rounds of national security. Althouh the issue had becomemoot and academic because the owners were no loner interested to reopen, theCourt still proceeded to do an analysis of the case and made formulations to serve asuidelines for all inferior courts and bodies exercisin 8uasi1judicial functions.articularly, the Court made a detailed exposition as to what needs be considered incases involvin broadcast media. 'hus;&

xxx xxx xxx

2%4 All forms of media, whether print or broadcast, are entitled to the broadprotection of the freedom of speech and expression clause. /$e (e%( )or "+"(a("o#% o# )reeo+ o) e@'re%%"o# &o#("#ue% (o be ($e &ear a#'re%e#( a#9er rue, that words are used in such circumstances and are of such a nature as to create a clear and present daner that they will brinabout the substantive evils that the lawma"er has a riht to prevent, In hisConstitution of the &hili""ines 2$nd Edition, pp. +7?1+9(4 Chief *usticeEnri8ue 0. :ernando cites at least nine of our decisions which apply the test.

0ore recently, the clear and present daner test was applied in *.B.3. =eyesin behalf of the Anti4Bases Coalition v. Bagatsing . 2&4 'he clear and present

daner test, however, does not lend itself to a simplistic and all embracininterpretation applicable to all utterances in all forums.

Broadcastin has to be licensed. Airwave fre8uencies have to be allocatedamon 8ualified users. A broadcast corporation cannot simply appropriate acertain fre8uency without reard for overnment reulation or for the rihtsof others.

All forms of communication are entitled to the broad protection of thefreedom of expression clause. Necessarily, however, the freedom of

television and radio broadcastin is somewhat lesser in scope than thefreedom accorded to newspaper and print media.

'he American Court in 5ederal Communications Commission v. &acifica5oundation 2&%; .-. 9$74, confronted with a patently offensive and indecentreular radio proram, explained why radio broadcastin, more than other forms of communications, receives the most limited protection from the freeexpression clause. :irst, broadcast media have established a uni8uelypervasive presence in the lives of all citiens, 0aterial presented over theairwaves confronts the citien, not only in public, but in the privacy of hishome. -econd, broadcastin is uni8uely accessible to children. Boo"storesand motion picture theaters may be prohibited from ma"in certain materialavailable to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tunin in and out.

-imilar considerations apply in the area of national security.

'he broadcast media have also established a uni8uely pervasive presencein the lives of all :ilipinos. Newspapers and current boo"s are found only inmetropolitan areas and in the poblaciones of municipalities accessible to fastand reular transportation. Even here, there are low income masses whofind the cost of boo"s, newspapers, and maaines beyond their humblemeans. Basic needs li"e food and shelter perforce enjoy hih priorities.

)n the other hand, the transistor radio is found everywhere. 'he televisionset is also becomin universal. 'heir messae may be simultaneouslyreceived by a national or reional audience of listeners includin theindifferent or unwillin who happen to be within reach of a blarin radio or

television set. 'he materials broadcast over the airwaves reach every personof every ae, persons of varyin susceptibilities to persuasion, persons of different I.O.s and mental capabilities, persons whose reactions toinflammatory or offensive speech would be difficult to monitor or predict. 'heimpact of the vibrant speech is forceful and immediate. nli"e readers of theprinted wor", the radio audience has lesser opportunity to coitate analye,and reject the utterance.

2+4 'he clear and present daner test, therefore, must ta"e the particular circumstances of broadcast media into account. 'he supervision of radiostations1whether by overnment or throuh self1reulation by the industryitself calls for thouhtful, intellient and sophisticated handlin.

'he overnment has a riht to be protected aainst broadcasts which incitethe listeners to violently overthrow it. =adio and television may not be used



to oranie a rebellion or to sinal the start of widespread uprisin. At thesame time, the people have a riht to be informed. =adio and televisionwould have little reason for existence if broadcasts are limited to bland,obse8uious, or pleasantly entertainin utterances. -ince they are the mostconvenient and popular means of disseminatin varyin views on publicissues, they also deserve special protection.

274 'he freedom to comment on public affairs is essential to the vitality of arepresentative democracy. In the #?#; case of 0nited States v. Bustos 2%9hil. 9%#4 this Court was already stressin that.

'he interest of society and the maintenance of ood overnment demand afull discussion of public affairs. Complete liberty to comment on the conductof public men is a scalpel in the case of free speech. 'he sharp incision of itsprobe relieves the abscesses of officialdom. 0en in public life may suffer under a hostile and an unjust accusationL the wound can be assuaed withthe balm of a clear conscience. A public officer must not be too thin1s"innedwith reference to comment upon his official acts. )nly thus can theintellience and dinity of the individual be exalted.

294 Broadcast stations deserve the special protection iven to all forms of media by the due process and freedom of expression clauses of theConstitution. @Citations omitted

It is interestin to note that the Court in -ans adopted the aruments found in .-. jurisprudence to justify differentiation of treatment 2i.e.# the scarcity, pervasivenessand accessibility to children4, bu( o#y a)(er &a(e9or"&ay e&ar"#9 ($a( D($e (e%()or "+"(a("o#% o# )reeo+ o) e@'re%%"o# &o#("#ue% (o be ($e &ear a# 're%e#(a#9er rue,D )or a )or+% o) +e"a, 7$e($er 'r"#( or broa&a%(. Indeed, a closereadin of the above18uoted provisions would show that the differentiation that theCourt in -ans referred to was narrowly restricted to what is otherwise deemed as5unprotected speech5 2e.g.# obscenity, national security, seditious and incitinspeech4, or to validate a licensin or reulatory scheme necessary to allocate thelimited broadcast fre8uencies, which is absent in print media. 'hus, when this Courtdeclared in -ans that the freedom iven to broadcast media was 5somewhat lesser inscope than the freedom accorded to newspaper and print media,5 it was not as towhat test should be applied, but the context by which re8uirements of licensin,

allocation of airwaves, and application of norms to unprotected speech.;+

In the same year that the -ans case was decided, it was reiterated in ,onales v.$atig+a% ,;7 that the test to determine free expression challenes was the clear andpresent daner, aain without distinuishin the media. ;9 $atig+a%# strictly spea"in,does not treat of broadcast media but motion pictures. Althouh the issue involvedobscenity standards as applied to movies, ;; the Court concluded its decision with thefollowin o+iter dictum that a less liberal approach would be used to resolve obscenityissues in television as opposed to motion pictures

All that remains to be said is that the rulin is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court thatwhere television is concerned, a less liberal approach calls for observance.'his is so because unli"e motion pictures where the patrons have to pay

their way, television reaches every home where there is a set. Children thenwill li"ely be amon the avid viewers of the prorams therein shownK..It

cannot be denied thouh that the -tate as "arens "atriae is called upon tomanifest an attitude of carin for the welfare of the youn.

0ore recently, in resolvin a case involvin the conduct of exit polls anddissemination of the results by a broadcast company, we reiterated that the clear andpresent daner rule is the test we un8uestionably adhere to issues that involvefreedoms of speech and of the press.;?

/$"% "% #o( (o %u99e%(, $o7e;er, ($a( ($e &ear a# 're%e#( a#9er rue $a% bee#a''"e (o a &a%e% ($a( "#;o;e ($e broa&a%( +e"a. 'he rule applies to all

media, includin broadcast, but only when the challened act is a content1basedreulation that infrines on free speech, expression and the press. Indeed, inOsmena v. COMELEC ,?( which also involved broadcast media, the Court refused toapply the clear and present daner rule to a C)0E3EC reulation of time andmanner of advertisin of political advertisements because the challened restrictionwas content1neutral.?# And in a case involvin due process and e8ual protectionissues, the Court in 3elecommunications and Broadcast Attorneys of the &hili""inesv. COMELEC ?$ treated a restriction imposed on a broadcast media as a reasonablecondition for the rant of the media6s franchise, without oin into which test wouldapply.

'hat broadcast media is subject to a reulatory reime absent in print media isobserved also in other jurisdictions, where the statutory reimes in place over broadcast media include elements of licensin, reulation by administrative bodies,and censorship. As explained by a British author

'he rea%o#% behind treatin broadcast and films differently from the printmedia differ in a number of respects, but have a common historical basis.'he stricter system of controls seems to have been adopted in answer to theview that owin to their 'ar("&uar "+'a&( o# au"e#&e%, films, videos andbroadcastin re8uire a system of prior restraints, whereas it is now acceptedthat boo"s and other printed media do not. 'hese media are viewed asbeneficial to the public in a number of respects, but are also seen aspossible sources of harm.?%

arenthetically, these justifications are now the subject of debate. H"%(or"&ay, thescarcity of fre8uencies was thouht to provide a rationale. >owever, &abe a#%a(e"(e (ee;"%"o# have enormously increased the number of actual and potentialchannels. *"9"(a (e&$#oo9y will further increase the number of channels available.But still, the arument persists that broadcastin is the most influential means of communication, since it comes into the home, and so much time is spent watchintelevision. -ince it has a uni8ue impact on people and affects children in a way thatthe print media normally does not, that reulation is said to be necessary in order topreserve pluralism. It has been arued further that a sinificant main threat to freeexpressionin terms of diversitycomes not from overnment, but from privatecorporate bodies. 'hese developments show a need for a reexamination of thetraditional notions of the scope and extent of broadcast media reulation. ?&

'he emerence of diital technoloy 11 which has led to the converence of broadcastin, telecommunications and the computer industry 11 has li"ewise led to the8uestion of whether the reulatory model for broadcastin will continue to be

appropriate in the convered environment.?+

Internet, for example, remains larelyunreulated, yet the Internet and the broadcast media share similarities, ?7 and the



rationales used to support broadcast reulation apply e8ually to the Internet.?9 'hus, ithas been arued that courts, leislative bodies and the overnment aenciesreulatin media must aree to reulate both, reulate neither or develop a newreulatory framewor" and rationale to justify the differential treatment. ?;

F. The Case At Bar

>avin settled the applicable standard to content1based restrictions on broadcastmedia, let us o to its application to the case at bar. 'o recapitulate, a overnmentalaction that restricts freedom of speech or of the press based on content is iven the

%(r"&(e%( %&ru("#y, with the 9o;er#+e#( $a;"#9 ($e bure# of overcomin thepresumed unconstitutionality by the &ear a# 're%e#( a#9er rue. 'his rule appliese8ually to all "inds of media, "#&u"#9 broa&a%( +e"a.

'his outlines the 'ro&eura +a' to follow in cases li"e the one at bar as it spells outthe followin 2a4 the testL 2b4 the presumptionL 2c4 the burden of proofL 2d4 the party todischare the burdenL and 2e4 the 8uantum of evidence necessary. )n the basis of the records of the case at bar, respondents who have the burden to show that theseacts do not abride freedom of speech and of the press failed to hurdle the clear andpresent daner test. It appears that the 9rea( e;" which overnment wants to preventis the airin of a tape recordin in alleed violation of the anti1wiretappin law. 'herecords of the case at bar, however, are confused and confusin, and respondents6evidence falls short of satisfyin the clear and present daner test. F"r%(y, the variousstatements of the ress -ecretary obfuscate the identity of the voices in the taperecordin. Se&o#y, the interity of the taped conversation is also suspect. 'heress -ecretary showed to the public two versions, one supposed to be a 5complete5version and the other, an 5altered5 version. /$"ry, the evidence of the respondentson the who6s and the how6s of the wiretappin act is ambivalent, especiallyconsiderin the tape6s different versions. 'he identity of the wire1tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Four($y, iven all these unsettled facets of the tape, it is even aruablewhether its airin would violate the anti1wiretappin law.

!e rule ($a( #o( e;ery ;"oa("o# o) a a7 7" :u%(")y %(ra"(:a&?e("#9 ($e e@er&"%eo) )reeo+ o) %'ee&$ a# o) ($e 're%%. )ur a7% are o) "))ere#( ?"#% anddoubtless, some of them provide norms of conduct which even if violated have onlyan adverse effect on a person6s private comfort but does not endaner national

security. 'here are laws of reat sinificance but their violation, by "(%e) a# 7"($ou(+ore, cannot support suppression of free speech and free press. In fine, ;"oa("o# o) a7 "% :u%( a )a&(or, a vital one to be sure, which should be weihed in adjudinwhether to restrain freedom of speech and of the press. 'he (o(a"(y o) ($e "#:ur"ou%e))e&(% of the violation to private and public interest must be calibrated in liht of thepreferred status accorded by the Constitution and by related international covenantsprotectin freedom of speech and of the press. In callin for a careful and calibratedmeasurement of the circumference of all these factors to determine compliance withthe clear and present daner test, ($e Cour( %$ou #o( be +"%"#(er're(e a%e;au"#9 ;"oa("o#% o) a7. By all means, violations of law should be viorouslyprosecuted by the -tate for they breed their own evil conse8uence. But to repeat, ($e#ee (o 're;e#( ($e"r ;"oa("o# &a##o( 'er %e (ru+' ($e e@er&"%e o) )ree %'ee&$

a# )ree 're%%, a 're)erre r"9$( 7$o%e brea&$ &a# ea (o 9rea(er e;"%. :or thisfailure of the respondents alone to offer proof to satisfy the clear and present daner test, the Court has no option but to uphold the exercise of free speech and free press.'here is no showin that the feared violation of the anti1wiretappin law clearlyendaners the #a("o#a %e&ur"(y o) ($e S(a(e.

'his is not all the faultline in the stance of the respondents. !e slide to the issue of whether the +ere 're%% %(a(e+e#(% of the -ecretary of *ustice and of the N'C in8uestion constitute a form of content1based prior restraint that has transressed theConstitution. In resolvin this issue, 7e $o ($a( "( "% #o( e&"%";e ($a( ($e 're%%

%(a(e+e#(% +ae by re%'o#e#(% 7ere #o( reu&e "# or )oo7e u' 7"($)or+a orer% or &"r&uar%. I( "% %u))"&"e#( ($a( ($e 're%% %(a(e+e#(% 7ere +aeby re%'o#e#(% 7$"e "# ($e e@er&"%e o) ($e"r o))"&"a )u#&("o#%. ndoubtedly,respondent /onales made his statements as -ecretary of *ustice, while the N'Cissued its statement as the reulatory body of media. A#y a&( o#e, %u&$ a% a%'ee&$ u((ere, )or a# o# be$a) o) ($e 9o;er#+e#( "# a# o))"&"a &a'a&"(y "%&o;ere by ($e rue o# 'r"or re%(ra"#(. /$e &o#&e'( o) a# Da&(D oe% #o( "+"("(%e) (o a&(% areay &o#;er(e (o a )or+a orer or o))"&"a &"r&uar. O($er7"%e,($e #o# )or+a"<a("o# o) a# a&( "#(o a# o))"&"a orer or &"r&uar 7" re%u( "# ($eea%y &"r&u+;e#("o# o) ($e 'ro$"b"("o# o# 'r"or re%(ra"#(. 'he press statements atbar are acts that should be struc" down as they constitute impermissible forms of prior restraints on the riht to free speech and press.

'here is enouh evidence of &$""#9 e))e&( of the complained acts on record. 'he7ar#"#9% iven to media &a+e )ro+ #o e%% the N'C, a reulatory aency that cancancel the Certificate of Authority of the radio and broadcast media. 'hey also camefrom the -ecretary of *ustice, the alter eo of the Executive, who wields the awesomepower to prosecute those perceived to be violatin the laws of the land. A)(er ($e7ar#"#9%, the FB inexplicably joined the N'C in issuin an ambivalent *oint ress-tatement. After the warnins, petitioner Chave was left alone to fiht this battle for freedom of speech and of the press. 'his silence on the sidelines on the part of somemedia practitioners is too deafenin to be the subject of misinterpretation.

'he constitutional imperative for us to stri"e down unconstitutional acts should alwaysbe exercised with care and in liht of the distinct facts of each case. :or there are nohard and fast rules when it comes to slippery constitutional 8uestions, and the limitsand construct of relative freedoms are never set in stone. Issues revolvin on their

construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challened acts arepatent invasions of a constitutionally protected riht, 7e %$ou be %7")( in stri"inthem down as nullities per se. A bo7 (oo %oo# %(ru&? )or )reeo+ "% 're)erre($a# a bo7 (oo a(e.

I# VIE HEREOF, the petition is GRAN/E*. 'he writs of certiorari and prohibitionare hereby issued, nullifyin the official statements made by respondents on *une ;,and ##, $((+ warnin the media on airin the alleed wiretapped conversationbetween the resident and other personalities, for constitutin unconstitutional prior restraint on the exercise of freedom of speech and of the press

SO OR*ERE*.

NE OR /I!ES CO. V. SLLIVAN .S. SRE!E COR/



36 .S. 25 *e&"e !ar&$ , 16J

CE/36O/A/6 3O 37E S0&/EME CO0/3 O5 ALABAMA

Sylla+us

=espondent, an elected official in 0ontomery, Alabama, brouht suit in a state courtallein that he had been libeled by an advertisement in corporate petitionerJsnewspaper, the text of which appeared over the names of the four individualpetitioners and many others. 'he advertisement included statements, some of which

were false, about police action alleedly directed aainst students who participated ina civil rihts demonstration and aainst a leader of the civil rihts movementLrespondent claimed the statements referred to him because his duties includedsupervision of the police department. 'he trial jude instructed the jury that suchstatements were 5libelous "er se#5 leal injury bein implied without proof of actualdamaes, and that, for the purpose of compensatory damaes, malice waspresumed, so that such damaes could be awarded aainst petitioners if thestatements were found to have been published by them and to have related torespondent. As to punitive damaes, the jude instructed that mere nelience wasnot evidence of actual malice, and would not justify an award of punitive damaesL herefused to instruct that actual intent to harm or rec"lessness had to be found beforepunitive damaes could be awarded, or that a verdict for respondent shoulddifferentiate between compensatory and punitive damaes. 'he jury found for respondent, and the -tate -upreme Court affirmed.

7eld8 A -tate cannot, under the :irst and :ourteenth Amendments, award damaesto a public official for defamatory falsehood relatin to his official conduct unless heproves 5actual malice5 11 that the statement was made with "nowlede of its falsity or with rec"less disreard of whether it was true or false. p. %97 . -. $7+1$?$.

2a4 Application by state courts of a rule of law, whether statutory or not, to award a judment in a civil action, is 5state action5 under the :ourteenth Amendment. . %97. -. $7+.

2b4 Expression does not lose constitutional protection to which it would otherwise beentitled because it appears in the form of a paid advertisement. p. %97 . -. $7+1$77.

2c4 :actual error, content defamatory of official reputation, or both, are insufficient towarrant an award of damaes for false statements unless 5actual malice5 11"nowlede that statements are false or in rec"less disreard of the truth 11 is alleedand proved. p. %97 . -. $9?1$;%.

2d4 -tate court judment entered upon a eneral verdict which does not differentiatebetween punitive damaes, as to which, under state law, actual malice must beproved, and eneral damaes, as to which it is 5presumed,5 precludes anydetermination as to the basis of the verdict, and re8uires reversal, where presumptionof malice is inconsistent with federal constitutional re8uirements. . %97 . -. $;&.

2e4 'he evidence was constitutionally insufficient to support the judment for respondent, since it failed to support a findin that the statements were made withactual malice or that they related to respondent. p. %97 . -. $;+1$?$.

$9% Ala. 7+7, #&& -o.$d $+, reversed and remanded.

!R. S/ICE RENNAN delivered the opinion of the Court.

!e are re8uired in this case to determine for the first time the extent to which theconstitutional protections for speech and press limit a -tateJs power to awarddamaes in a libel action brouht by a public official aainst critics of his officialconduct.

=espondent 3. B. -ullivan is one of the three elected Commissioners of the City of

0ontomery, Alabama. >e testified that he was

5Commissioner of ublic Affairs, and the duties are supervision of the olice<epartment, :ire <epartment, <epartment of Cemetery and <epartment of -cales.5

>e brouht this civil libel action aainst the four individual petitioners, who areNeroes and Alabama clerymen, and aainst petitioner the New Por" 'imesCompany, a New Por" corporation which publishes the New Por" 'imes, a dailynewspaper. A jury in the Circuit Court of 0ontomery County awarded him damaesof Q+((,(((, the full amount claimed, aainst all the petitioners, and the -upremeCourt of Alabama affirmed. $9% Ala. 7+7, #&& -o.$d $+.

=espondentJs complaint alleed that he had been libeled by statements in a full1pae

advertisement that was carried in the New Por" 'imes on 0arch $?, #?7(. @ # Entitled5>eed 'heir =isin oices,5 the advertisement bean by statin that,

5As the whole world "nows by now, thousands of -outhern Nero studentsare enaed in widespread nonviolent demonstrations in positive affirmationof the riht to live in human dinity as uaranteed by the .-. Constitutionand the Bill of =ihts.5

It went on to chare that,

5in their efforts to uphold these uarantees, they are bein met by anunprecedented wave of terror by those who would deny and neate thatdocument which the whole world loo"s upon as settin the pattern for modern freedom. . . .5

-ucceedin pararaphs purported to illustrate the 5wave of terror5 by describincertain alleed events. 'he text concluded with an appeal for funds for threepurposes support of the student movement, 5the strule for the riht to vote,5 andthe leal defense of <r. 0artin 3uther Fin, *r., leader of the movement, aainst aperjury indictment then pendin in 0ontomery.

'he text appeared over the names of 7& persons, many widely "nown for their activities in public affairs, reliion, trade unions, and the performin arts. Below thesenames, and under a line readin 5!e in the south who are strulin daily for dinityand freedom warmly endorse this appeal,5 appeared the names of the four individualpetitioners and of #7 other persons, all but two of whom were identified as clerymenin various -outhern cities. 'he advertisement was sined at the bottom of the pae bythe 5Committee to <efend 0artin 3uther Fin and the -trule for :reedom in the

-outh,5 and the officers of the Committee were listed.

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)f the #( pararaphs of text in the advertisement, the third and a portion of the sixthwere the basis of respondentJs claim of libel. 'hey read as follows

'hird pararaph

5In 0ontomery, Alabama, after students san J0y Country, J'is of 'heeJ onthe -tate Capitol steps, their leaders were expelled from school, andtruc"loads of police armed with shotuns and tear1as rined the Alabama-tate Collee Campus. !hen the entire student body protested to stateauthorities by refusin to rereister, their dinin hall was padloc"ed in an

attempt to starve them into submission.5

-ixth pararaph

5Aain and aain, the -outhern violators have answered <r. FinJs peacefulprotests with intimidation and violence. 'hey have bombed his home, almost"illin his wife and child. 'hey have assaulted his person. 'hey havearrested him seven times 11 for Jspeedin,J JloiterinJ and similar Joffenses.J And now they have chared him with JperjuryJ 11 a felony under which theycould imprison him for ten years. . . .5

Althouh neither of these statements mentions respondent by name, he contendedthat the word 5police5 in the third pararaph referred to him as the 0ontomeryCommissioner who supervised the olice <epartment, so that he was bein accused

of 5rinin5 the campus with police. >e further claimed that the pararaph would beread as imputin to the police, and hence to him, the padloc"in of the dinin hall inorder to starve the students into submission. @ $ As to the sixth pararaph, hecontended that, since arrests are ordinarily made by the police, the statement 5'heyhave arrested @<r. Fin seven times5 would be read as referrin to himL he further contended that the 5'hey5 who did the arrestin would be e8uated with the 5'hey5who committed the other described acts and with the 5-outhern violators.5 'hus, hearued, the pararaph would be read as accusin the 0ontomery police, and hencehim, of answerin <r. FinJs protests with 5intimidation and violence,5 bombin hishome, assaultin his person, and charin him with perjury. =espondent and six other 0ontomery residents testified that they read some or all of the statements asreferrin to him in his capacity as Commissioner.

It is uncontroverted that some of the statements contained in the two pararaphs

were not accurate descriptions of events which occurred in 0ontomery. AlthouhNero students staed a demonstration on the -tate Capitol steps, they san theNational Anthem and not 50y Country, J'is of 'hee.5 Althouh nine students wereexpelled by the -tate Board of Education, this was not for leadin the demonstrationat the Capitol, but for demandin service at a lunch counter in the 0ontomeryCounty Courthouse on another day. Not the entire student body, but most of it, hadprotested the expulsion, not by refusin to reister, but by boycottin classes on asinle dayL virtually all the students did reister for the ensuin semester. 'he campusdinin hall was not padloc"ed on any occasion, and the only students who may havebeen barred from eatin there were the few who had neither sined a prereistrationapplication nor re8uested temporary meal tic"ets. Althouh the police were deployednear the campus in lare numbers on three occasions, they did not at any time 5rin5the campus, and they were not called to the campus in connection with the

demonstration on the -tate Capitol steps, as the third pararaph implied. <r. Fin hadnot been arrested seven times, but only four, and althouh he claimed to have been

assaulted some years earlier in connection with his arrest for loiterin outside acourtroom, one of the officers who made the arrest denied that there was such anassault.

)n the premise that the chares in the sixth pararaph could be read as referrin tohim, respondent was allowed to prove that he had not participated in the eventsdescribed. Althouh <r. FinJs home had, in fact, been bombed twice when his wifeand child were there, both of these occasions antedated respondentJs tenure asCommissioner, and the police were not only not implicated in the bombins, but hadmade every effort to apprehend those who were. 'hree of <r. FinJs four arrests too"

place before respondent became Commissioner. Althouh <r. Fin had, in fact, beenindicted 2he was subse8uently ac8uitted4 on two counts of perjury, each of whichcarried a possible five1year sentence, respondent had nothin to do with procurinthe indictment.

=espondent made no effort to prove that he suffered actual pecuniary loss as a resultof the alleed libel. @ % )ne of his witnesses, a former employer, testified that, if hehad believed the statements, he doubted whether he 5would want to be associatedwith anybody who would be a party to such thins that are stated in that ad,5 and thathe would not reemploy respondent if he believed 5that he allowed the olice<epartment to do the thins that the paper say he did.5 But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to respondent. 'he cost of the advertisement was approximately

Q&;((, and it was published by the 'imes upon an order from a New Por" advertisinaency actin for the sinatory Committee. 'he aency submitted the advertisementwith a letter from A. hilip =andolph, Chairman of the Committee, certifyin that thepersons whose names appeared on the advertisement had iven their permission.0r. =andolph was "nown to the 'imesJ Advertisin Acceptability <epartment as aresponsible person, and, in acceptin the letter as sufficient proof of authoriation, itfollowed its established practice. 'here was testimony that the copy of theadvertisement which accompanied the letter listed only the 7& names appearinunder the text, and that the statement, 5!e in the south . . . warmly endorse thisappeal,5 and the list of names thereunder, which included those of the individualpetitioners, were subse8uently added when the first proof of the advertisement wasreceived. Each of the individual petitioners testified that he had not authoried the useof his name, and that he had been unaware of its use until receipt of respondentJsdemand for a retraction. 'he manaer of the Advertisin Acceptability <epartment

testified that he had approved the advertisement for publication because he "newnothin to cause him to believe that anythin in it was false, and because it bore theendorsement of 5a number of people who are well "nown and whose reputation5 he5had no reason to 8uestion.5 Neither he nor anyone else at the 'imes made an effortto confirm the accuracy of the advertisement, either by chec"in it aainst recent'imes news stories relatin to some of the described events or by any other means.

Alabama law denies a public officer recovery of punitive damaes in a libel actionbrouht on account of a publication concernin his official conduct unless he firstma"es a written demand for a public retraction and the defendant fails or refuses tocomply. Alabama Code, 'it. 9, R ?#&. =espondent served such a demand upon eachof the petitioners. None of the individual petitioners responded to the demand,primarily because each too" the position that he had not authoried the use of hisname on the advertisement, and therefore had not published the statements thatrespondent alleed had libeled him. 'he 'imes did not publish a retraction in



response to the demand, but wrote respondent a letter statin, amon other thins,that 5we . . . are somewhat puled as to how you thin" the statements in any wayreflect on you,5 and 5you miht, if you desire, let us "now in what respect you claimthat the statements in the advertisement reflect on you.5 =espondent filed this suit afew days later without answerin the letter. 'he 'imes did, however, subse8uentlypublish a retraction of the advertisement upon the demand of /overnor *ohnatterson of Alabama, who asserted that the publication chared him with

5rave misconduct and . . . improper actions and omissions as /overnor of Alabama and Ex1)fficio Chairman of the -tate Board of Education of

Alabama.5

!hen as"ed to explain why there had been a retraction for the /overnor but not for respondent, the -ecretary of the 'imes testified

5!e did that because we didnJt want anythin that was published by 'he'imes to be a reflection on the -tate of Alabama, and the /overnor was, asfar as we could see, the embodiment of the -tate of Alabama and the proper representative of the -tate, and, furthermore, we had by that time learnedmore of the actual facts which the and purported to recite and, finally, the addid refer to the action of the -tate authorities and the Board of Education,presumably of which the /overnor is the ex1officio chairman. . . .5

)n the other hand, he testified that he did not thin" that 5any of the lanuae in there

referred to 0r. -ullivan.5

'he trial jude submitted the case to the jury under instructions that the statements inthe advertisement were 5libelous "er se#5 and were not privileed, so that petitionersmiht be held liable if the jury found that they had published the advertisement andthat the statements were made 5of and concernin5 respondent. 'he jury wasinstructed that, because the statements were libelous "er se# 5the law . . . impliesleal injury from the bare fact of publication itself,5 5falsity and malice are presumed,55eneral damaes need not be alleed or proved, but are presumed,5 and 5punitivedamaes may be awarded by the jury even thouh the amount of actual damaes isneither found nor shown.5 An award of punitive damaes 11 as distinuished from5eneral5 damaes, which are compensatory in nature 11 apparently re8uires proof of actual malice under Alabama law, and the jude chared that

5mere nelience or carelessness is not evidence of actual malice or malicein fact, and does not justify an award of exemplary or punitive damaes.5

>e refused to chare, however, that the jury must be 5convinced5 of malice, in thesense of 5actual intent5 to harm or 5ross nelience and rec"lessness,5 to ma"esuch an award, and he also refused to re8uire that a verdict for respondentdifferentiate between compensatory and punitive damaes. 'he jude rejectedpetitionersJ contention that his rulins abrided the freedoms of speech and of thepress that are uaranteed by the :irst and :ourteenth Amendments.

In affirmin the judment, the -upreme Court of Alabama sustained the trial judeJsrulins and instructions in all respects. $9% Ala. 7+7, #&& -o.$d $+. It held that,

5where the words published tend to injure a person libeled by them in his

reputation, profession, trade or business, or chare him with an indictableoffense, or tend to brin the individual into public contempt,5

they are 5libelous "er se5L that 5the matter complained of is, under the above doctrine,libelous "er se# if it was published of and concernin the plaintiff5, and that it wasactionable without 5proof of pecuniary injury . . . . such injury bein implied.5 6d. at79%, 797, #&& -o.$d at %9, &#. It approved the trial courtJs rulin that the jury couldfind the statements to have been made 5of and concernin5 respondent, statin

5!e thin" it common "nowlede that the averae person "nows thatmunicipal aents, such as police and firemen, and others, are under thecontrol and direction of the city overnin body, and, more particularly, under the direction and control of a sinle commissioner. In measurin the

performance or deficiencies of such roups, praise or criticism is usuallyattached to the official in complete control of the body.5

6d. at 79&179+, #&& -o.$d at %?. In sustainin the trial courtJs determination that theverdict was not excessive, the court said that malice could be inferred from the 'imesJ5irresponsibility5 in printin the advertisement while

5the 'imes, in its own files, had articles already published which would havedemonstrated the falsity of the alleations in the advertisementL5

from the 'imesJ failure to retract for respondent while retractin for the /overnor,whereas the falsity of some of the alleations was then "nown to the 'imes and 5thematter contained in the advertisement was e8ually false as to both parties5, and fromthe testimony of the 'imesJ -ecretary that, apart from the statement that the dinin

hall was padloc"ed, he thouht the two pararaphs were 5substantially correct.5 6d. at7;717;9, #&& -o.$d at +(1+#. 'he court reaffirmed a statement in an earlier opinionthat 5'here is no leal measure of damaes in cases of this character.5 6d. at 7;7, #&&-o.$d at +(. It rejected petitionersJ constitutional contentions with the brief statementsthat 5'he :irst Amendment of the .-. Constitution does not protect libelouspublications,5 and 5'he :ourteenth Amendment is directed aainst -tate action, andnot private action.5 6d. at 797, #&& -o.$d at &(.

Because of the importance of the constitutional issues involved, we ranted theseparate petitions for certiorari of the individual petitioners and of the 'imes. %9# .-.?&7. !e reverse the judment. !e hold that the rule of law applied by the Alabamacourts is constitutionally deficient for failure to provide the safeuards for freedom of speech and of the press that are re8uired by the :irst and :ourteenth Amendments ina libel action brouht by a public official aainst critics of his official conduct. @ & !efurther hold that, under the proper safeuards, the evidence presented in this case isconstitutionally insufficient to support the judment for respondent.

I

!e may dispose at the outset of two rounds asserted to insulate the judment of the Alabama courts from constitutional scrutiny. 'he first is the proposition relied on bythe -tate -upreme Court 11 that 5'he :ourteenth Amendment is directed aainst -tateaction, and not private action.5 'hat proposition has no application to this case. Althouh this is a civil lawsuit between private parties, the Alabama courts haveapplied a state rule of law which petitioners claim to impose invalid restrictions ontheir constitutional freedoms of speech and press. It matters not that that law hasbeen applied in a civil action and that it is common law only, thouh supplemented bystatute.

See# e.g.# Alabama Code, 'it. 9, RR ?(;1?#9. 'he test is not the form in which

state power has been applied but, whatever the form, whether such power has, in



fact, been exercised. See Ex "arte 9irginia# #(( . -. %%?, #(( . -. %&71%&9L American 5ederation of La+or v. S*ing. %#$ . -. %$#.

'he second contention is that the constitutional uarantees of freedom of speech andof the press are inapplicable here, at least so far as the 'imes is concerned, becausethe alleedly libelous statements were published as part of a paid, 5commercial5advertisement. 'he arument relies on 9alentine v. Chrestensen# %#7 . -. +$, wherethe Court held that a city ordinance forbiddin street distribution of commercial andbusiness advertisin matter did not abride the :irst Amendment freedoms, even asapplied to a handbill havin a commercial messae on one side but a protest aainst

certain official action, on the other. 'he reliance is wholly misplaced. 'he Court inChrestensen reaffirmed the constitutional protection for 5the freedom of communicatin information and disseminatin opinion5L its holdin was based uponthe factual conclusions that the handbill was 5purely commercial advertisin5 and thatthe protest aainst official action had been added only to evade the ordinance.

'he publication here was not a 5commercial5 advertisement in the sense in which theword was used in Chrestensen. It communicated information, expressed opinion,recited rievances, protested claimed abuses, and souht financial support on behalf of a movement whose existence and objectives are matters of the hihest publicinterest and concern. See )AAC& v. Button# %9# . -. &#+, %9# . -. &%+. 'hat the'imes was paid for publishin the advertisement is as immaterial in this connection asis the fact that newspapers and boo"s are sold. Smith v. California# %7# . -. #&9,%7# . -. #+(L cf. Bantam Boo%s# 6nc.# v. Sullivan# %9$ . -. +;, %9$ . -. 7&, n. 7. Any other conclusion would discourae newspapers from carryin 5editorialadvertisements5 of this type, and so miht shut off an important outlet for thepromulation of information and ideas by persons who do not themselves haveaccess to publishin facilities 11 who wish to exercise their freedom of speech eventhouh they are not members of the press. Cf. Lovell v. ,riffin# %(% . -. &&&, %(% .-. &+$L Schneider v. State# %(; . -. #&9, %(; . -. #7&. 'he effect would be toshac"le the :irst Amendment in its attempt to secure 5the widest possibledissemination of information from diverse and antaonistic sources.5 Associated &ress v. 0nited States# %$7 . -. #, %$7 . -. $(. 'o avoid placin such a handicapupon the freedoms of expression, we hold that, if the alleedly libelous statementswould otherwise be constitutionally protected from the present judment, they do notforfeit that protection because they were published in the form of a paidadvertisement. @ +

II

nder Alabama law, as applied in this case, a publication is 5libelous "er se5 if thewords 5tend to injure a person . . . in his reputation5 or to 5brin @him into publiccontempt5L the trial court stated that the standard was met if the words are such as to5injure him in his public office, or impute misconduct to him in his office, or want of official interity, or want of fidelity to a public trust. . . .5 'he jury must find that thewords were published 5of and concernin5 the plaintiff, but, where the plaintiff is apublic official, his place in the overnmental hierarchy is sufficient evidence to supporta findin that his reputation has been affected by statements that reflect upon theaency of which he is in chare. )nce 5libel "er se5 has been established, thedefendant has no defense as to stated facts unless he can persuade the jury that theywere true in all their particulars. Ala+ama /ide Co. v. 9ance# $%+ Ala. $7%, #9; -o.

&%; 2#?%;4L :ohnson &u+lishing Co. v. -avis# $9# Ala. &9&, &?& &?+, #$& -o.$d &&#,&+91&+; 2#?7(4. >is privilee of 5fair comment5 for expressions of opinion depends on

the truth of the facts upon which the comment is based. &arsons v. Age47erald &u+lishing Co.# #;# Ala. &%?, &+(, 7# -o. %&+, %+( 2#?#%4. nless he can discharethe burden of provin truth, eneral damaes are presumed, and may be awardedwithout proof of pecuniary injury. A showin of actual malice is apparently aprere8uisite to recovery of punitive damaes, and the defendant may, in any event,forestall a punitive award by a retraction meetin the statutory re8uirements. /oodmotives and belief in truth do not neate an inference of malice, but are relevant onlyin mitiation of punitive damaes if the jury chooses to accord them weiht. :ohnson&u+lishing Co. v. -avis# su"ra# $9# Ala., at &?+, #$& -o.$d at &+;.

'he 8uestion before us is whether this rule of liability, as applied to an action brouhtby a public official aainst critics of his official conduct, abrides the freedom of speech and of the press that is uaranteed by the :irst and :ourteenth Amendments.

=espondent relies heavily, as did the Alabama courts, on statements of this Court tothe effect that the Constitution does not protect libelous publications. @ 7 'hosestatements do not foreclose our in8uiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of publicofficials. 'he dictum in &enne%am" v. 5lorida# %$; . -. %%#, %$; . -. %&;1%&?, that5when the statements amount to defamation, a jude has such remedy in damaesfor libel as do other public servants,5 implied no view as to what remedy mihtconstitutionally be afforded to public officials. In Beauharnais v. 6llinois# %&% . -. $+(,the Court sustained an Illinois criminal libel statute as applied to a publication held tobe both defamatory of a racial roup and 5liable to cause violence and disorder.5 Butthe Court was careful to note that it 5retains and exercises authority to nullify actionwhich encroaches on freedom of utterance under the uise of punishin libel5L for 5public men are, as it were, public property,5 and 5discussion cannot be denied, andthe riht, as well as the duty, of criticism must not be stifled.5 6d. at %&% . -. $7%1$7&,and n. #;. In the only previous case that did present the 8uestion of constitutionallimitations upon the power to award damaes for libel of a public official, the Courtwas e8ually divided and the 8uestion was not decided. Schenectady 0nion &u+. Co.v. S*eeney# %#7 .-. 7&$.

In decidin the 8uestion now, we are compelled by neither precedent nor policy toive any more weiht to the epithet 5libel5 than we have to other 5mere labels5 of statelaw. )AAC& v. Button# %9# . -. &#+, %9# . -. &$?. 3i"e insurrection, @ 9 contempt, @; advocacy of unlawful acts, @ ? breach of the peace, @ #( obscenity, @ ## solicitation

of leal business, @ #$ and the various other formulae for the repression of expression that have been challened in this Court, libel can claim no talismanicimmunity from constitutional limitations. It must be measured by standards that satisfythe :irst Amendment.

'he eneral proposition that freedom of expression upon public 8uestions is securedby the :irst Amendment has lon been settled by our decisions. 'he constitutionalsafeuard, we have said, 5was fashioned to assure unfettered interchane of ideasfor the brinin about of political and social chanes desired by the people.5 /oth v.0nited States# %+& . -. &97, %+& . -. &;&.

5'he maintenance of the opportunity for free political discussion to the end thatovernment may be responsive to the will of the people and that chanes may beobtained by lawful means, an opportunity essential to the security of the =epublic, is a

fundamental principle of our constitutional system.5

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Strom+erg v. California# $;% . -. %+?, $;% . -. %7?. 5@It is a pried Americanprivilee to spea" oneJs mind, althouh not always with perfect ood taste, on allpublic institutions,5 Bridges v. California# %#& . -. $+$, %#& . -. $9(, and thisopportunity is to be afforded for 5viorous advocacy5 no less than 5abstractdiscussion.5 )AAC& v. Button# %9# . -. &#+, %9# . -. &$?.

'he :irst Amendment, said *ude 3earned >and,

5presupposes that riht conclusions are more li"ely to be athered out of amultitude of tonues than throuh any "ind of authoritative selection. 'o

many, this is, and always will be, folly, but we have sta"ed upon it our all.5

0nited States v. Associated &ress# +$ :.-upp. %7$, %9$ 2<.C.-.<.N.P.#?&%4. 0r.*ustice Brandeis, in his concurrin opinion in Whitney v. California# $9& . -. %+9, $9&. -. %9+1%97, ave the principle its classic formulation

5'hose who won our independence believed . . . that public discussion is apolitical duty, and that this should be a fundamental principle of the Americanovernment. 'hey reconied the ris"s to which all human institutions aresubject. But they "new that order cannot be secured merely throuh fear of punishment for its infractionL that it is haardous to discourae thouht, hopeand imainationL that fear breeds repressionL that repression breeds hateLthat hate menaces stable overnmentL that the path of safety lies in theopportunity to discuss freely supposed rievances and proposed remedies,

and that the fittin remedy for evil counsels is ood ones. Believin in thepower of reason as applied throuh public discussion, they eschewedsilence coerced by law 11 the arument of force in its worst form.=econiin the occasional tyrannies of overnin majorities, they amendedthe Constitution so that free speech and assembly should be uaranteed.5

'hus, we consider this case aainst the bac"round of a profound nationalcommitment to the principle that debate on public issues should be uninhibited,robust, and wide1open, and that it may well include vehement, caustic, andsometimes unpleasantly sharp attac"s on overnment and public officials. See3erminiello v. Chicago# %%9 . -. #, %%9 . -. &L -e :onge v. Oregon# $?? . -. %+%,$?? . -. %7+. 'he present advertisement, as an expression of rievance and proteston one of the major public issues of our time, would seem clearly to 8ualify for theconstitutional protection. 'he 8uestion is whether it forfeits that protection by thefalsity of some of its factual statements and by its alleed defamation of respondent.

Authoritative interpretations of the :irst Amendment uarantees have consistentlyrefused to reconie an exception for any test of truth 11 whether administered by judes, juries, or administrative officials 11 and especially one that puts the burden of provin truth on the spea"er. Cf. S"eiser v. /andall# %+9 . -. +#%, %+9 . -. +$+1+$7. 'he constitutional protection does not turn upon 5the truth, popularity, or socialutility of the ideas and beliefs which are offered.5 )AAC& v. Button# %9# . -. &#+,%9# . -. &&+. As 0adison said, 5-ome deree of abuse is inseparable from theproper use of every thin, and in no instance is this more true than in that of thepress.5 & ElliotJs <ebates on the :ederal Constitution 2#;974, p. +9#. In Cant*ell v.Connecticut# %#( . -. $?7, %#( . -. %#(, the Court declared

5In the realm of reliious faith, and in that of political belief, sharp differencesarise. In both fields, the tenets of one man may seem the ran"est error to his

neihbor. 'o persuade others to his own point of view, the pleader, as we"now, at times resorts to exaeration, to vilification of men who have been,or are, prominent in church or state, and even to false statement. But thepeople of this nation have ordained, in the liht of history, that, in spite of theprobability of excesses and abuses, these liberties are, in the lon view,essential to enlihtened opinion and riht conduct on the part of the citiensof a democracy.5

'hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 5breathin space5 that they 5need . . . to

survive,5 )AAC& v. Button# %9# . -. &#+, %9# . -. &%%, was also reconied by theCourt of Appeals for the <istrict of Columbia Circuit in S*eeney v. &atterson# 97.-.App.<.C. $%, $&, #$; :.$d &+9, &+; 2#?&$4, cert. denied# %#9 .-. 79;. *udeEderton spo"e for a unanimous court which affirmed the dismissal of aConressmanJs libel suit based upon a newspaper article charin him with anti1-emitism in opposin a judicial appointment. >e said

5Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the overned must not criticie their overnors. . . . 'he interest of the public here outweihs the interest of appellant or any other individual. 'he protection of the public re8uires notmerely discussion, but information. olitical conduct and views which somerespectable people approve, and others condemn, are constantly imputed toConressmen. Errors of fact, particularly in reard to a manJs mental statesand processes, are inevitable. . . . !hatever is added to the field of libel ista"en from the field of free debate. @ #%5

Injury to official reputation affords no more warrant for repressin speech that wouldotherwise be free than does factual error. !here judicial officers are involved, thisCourt has held that concern for the dinity and reputation of the courts does not justifythe punishment as criminal contempt of criticism of the jude or his decision. Bridgesv. California# %#& . -. $+$. 'his is true even thouh the utterance contains 5half1truths5 and 5misinformation.5 &enne%am" v. 5lorida# %$; . -. %%#, %$; . -. %&$,%$; . -. %&%, n. +, %$; . -. %&+. -uch repression can be justified, if at all, only by aclear and present daner of the obstruction of justice. See also Craig v. 7arney# %%#. -. %79L Wood v. ,eorgia# %9( . -. %9+. If judes are to be treated as 5men of fortitude, able to thrive in a hardy climate,5 Craig v. 7arney# su"ra# %%# .-. at %%# .

-. %97, surely the same must be true of other overnment officials, such as electedcity commissioners. @ #& Criticism of their official conduct does not lose itsconstitutional protection merely because it is effective criticism, and hence diminishestheir official reputations.

If neither factual error nor defamatory content suffices to remove the constitutionalshield from criticism of official conduct, the combination of the two elements is no lessinade8uate. 'his is the lesson to be drawn from the reat controversy over the-edition Act of #9?;, # -tat. +?7, which first crystallied a national awareness of thecentral meanin of the :irst Amendment. See 3evy, 3eacy of -uppression 2#?7(4, at$+; et se;.< -mith, :reedomJs :etters 2#?+74, at &$7, &%#, and "assim. 'hat statutemade it a crime, punishable by a Q+,((( fine and five years in prison,

5if any person shall write, print, utter or publish . . . any false, scandalous and

malicious writin or writins aainst the overnment of the nited -tates, or either house of the Conress . . . or the resident . . . with intent to























































































defame . . . or to brin them, or either of them, into contempt or disreputeL or to excite aainst them, or either or any of them, the hatred of the oodpeople of the nited -tates.5

'he Act allowed the defendant the defense of truth, and provided that the jury were tobe judes both of the law and the facts. <espite these 8ualifications, the Act wasviorously condemned as unconstitutional in an attac" joined in by *efferson and0adison. In the famous irinia =esolutions of #9?;, the /eneral Assembly of irinia resolved that it

5doth particularly protest aainst the palpable and alarmin infractions of theConstitution in the two late cases of the JAlien and -edition Acts,J passed at the lastsession of Conress. . . . @'he -edition Act exercises . . . a power not deleated bythe Constitution, but, on the contrary, expressly and positively forbidden by one of theamendments thereto 11 a power which, more than any other, ouht to produceuniversal alarm because it is leveled aainst the riht of freely examinin publiccharacters and measures, and of free communication amon the people thereon,which has ever been justly deemed the only effectual uardian of every other riht.5

& ElliotJs <ebates, su"ra# pp. ++%1++&. 0adison prepared the =eport in support of theprotest. >is premise was that the Constitution created a form of overnment under which 5'he people, not the overnment, possess the absolute sovereinty.5 'hestructure of the overnment dispersed power in reflection of the peopleJs distrust of concentrated power, and of power itself at all levels. 'his form of overnment was

5altoether different5 from the British form, under which the Crown was soverein andthe people were subjects. 5Is it not natural and necessary, under such differentcircumstances,5 he as"ed, 5that a different deree of freedom in the use of the pressshould be contemplatedS5 6d.# pp. +7?1+9(. Earlier, in a debate in the >ouse of =epresentatives, 0adison had said

5If we advert to the nature of =epublican /overnment, we shall find that thecensorial power is in the people over the /overnment, and not in the/overnment over the people.5

& Annals of Conress, p. ?%& 2#9?&4. )f the exercise of that power by the press, his=eport said

5In every state, probably, in the nion, the press has exerted a freedom in

canvassin the merits and measures of public men, of every description,which has not been confined to the strict limits of the common law. )n thisfootin, the freedom of the press has stoodL on this foundation it yet stands. .. .5

& ElliotJs <ebates, su"ra# p. +9(. 'he riht of f ree public discussion of the stewardshipof public officials was thus, in 0adisonJs view, a fundamental principle of the Americanform of overnment. @ #+

Althouh the -edition Act was never tested in this Court, @ #7 the attac" upon itsvalidity has carried the day in the court of history. :ines levied in its prosecution wererepaid by Act of Conress on the round that it was unconstitutional. See# e.g.# Act of *uly &, #;&(, c. &+, 7 -tat. ;($, accompanied by >.=.=ep. No. ;7, $7th Con., #st-ess. 2#;&(4. Calhoun, reportin to the -enate on :ebruary &, #;%7, assumed that its

invalidity was a matter 5which no one now doubts.5 =eport with -enate bill No. #$$,

$&th Con., #st -ess., p. %. *efferson, as resident, pardoned those who had beenconvicted and sentenced under the Act and remitted their fines, statin

5I dischared every person under punishment or prosecution under thesedition law because I considered, and now consider, that law to be a nullity,as absolute and as palpable as if Conress had ordered us to fall down andworship a olden imae.5

3etter to 0rs. Adams, *uly $$, #;(&, & *effersonJs !or"s 2!ashinton ed.4, pp. +++,++7. 'he invalidity of the Act has also been assumed by *ustices of this Court. See

>olmes, *., dissentin and joined by Brandeis, *., in A+rams v. 0nited States# $+( .-. 7#7, $+( . -. 7%(L *ac"son, *., dissentin in Beauharnais v. 6llinois# %&% . -.$+(, %&% . -. $;;1$;?L <oulas, 'he =iht of the eople 2#?+;4, p. &9. See alsoCooley, Constitutional 3imitations 2;th ed., Carrinton, #?$94, pp. ;??1?((L Chafee,:ree -peech in the nited -tates 2#?&$4, pp. $91$;. 'hese views reflect a broadconsensus that the Act, because of the restraint it imposed upon criticism of overnment and public officials, was inconsistent with the :irst Amendment.

'here is no force in respondentJs arument that the constitutional limitations implicit inthe history of the -edition Act apply only to Conress, and not to the -tates. It is truethat the :irst Amendment was oriinally addressed only to action by the :ederal/overnment, and that *efferson, for one, while denyin the power of Conress 5tocontroul the freedom of the press,5 reconied such a power in the -tates. See the#;(& 3etter to Abiail Adams 8uoted in -ennis v. 0nited States# %&# . -. &?&, %&# .

-. +$$, n. & 2concurrin opinion4. But this distinction was eliminated with the adoptionof the :ourteenth Amendment and the application to the -tates of the :irst AmendmentJs restrictions. See# e.g.# ,itlo* v. )e* or%# $7; . -. 7+$, $7; . -.777L Schneider v. State# %(; . -. #&9, %(; . -. #7(L Bridges v. California# %#& . -.$+$, %#& . -. $7;L Ed*ards v. South Carolina# %9$ . -. $$?, %9$ . -. $%+.

!hat a -tate may not constitutionally brin about by means of a criminal statute isli"ewise beyond the reach of its civil law of libel. @ #9 'he fear of damae awardsunder a rule such as that invo"ed by the Alabama courts here may be mar"edly moreinhibitin than the fear of prosecution under a criminal statute. See City of Chicago v.3ri+une Co.# %(9 Ill. +?+, 7(9, #%? N.E. ;7, ?( 2#?$%4. Alabama, for example, has acriminal libel law which subjects to prosecution 5any person who spea"s, writes, or prints of and concernin another any accusation falsely and maliciously importin the

commission by such person of a felony, or any other indictable offense involvinmoral turpitude,5 and which allows as punishment upon conviction a fine notexceedin Q+(( and a prison sentence of six months. Alabama Code, 'it. #&, R %+(.resumably, a person chared with violation of this statute enjoys ordinary criminallaw safeuards such as the re8uirements of an indictment and of proof beyond areasonable doubt. 'hese safeuards are not available to the defendant in a civilaction. 'he judment awarded in this case 11 without the need for any proof of actualpecuniary loss 11 was one thousand times reater than the maximum fine provided bythe Alabama criminal statute, and one hundred times reater than that provided bythe -edition Act.

And since there is no double jeopardy limitation applicable to civil lawsuits, this is notthe only judment that may be awarded aainst petitioners for the same publication.@ #; !hether or not a newspaper can survive a succession of such judments, the

pall of fear and timidity imposed upon those who would ive voice to public criticism isan atmosphere in which the :irst Amendment freedoms cannot survive. lainly the
















































Alabama law of civil libel is 5a form of reulation that creates haards to protectedfreedoms mar"edly reater than those that attend reliance upon the criminal law.5

Bantam Boo%s# 6nc. v. Sullivan# %9$ . -. +;, %9$ . -. 9(.

'he state rule of law is not saved by its allowance of the defense of truth. A defensefor erroneous statements honestly made is no less essential here than was there8uirement of proof of uilty "nowlede which, in Smith v. California# %7# . -. #&9,we held indispensable to a valid conviction of a boo"seller for possessin obscenewritins for sale. !e said

5:or, if the boo"seller is criminally liable without "nowlede of thecontents, . . . >e will tend to restrict the boo"s he sells to those he hasinspected, and thus the -tate will have imposed a restriction upon thedistribution of constitutionally protected, as well as obscene, literature. . . . And the boo"sellerJs burden would become the publicJs burden, for, byrestrictin him, the publicJs access to readin matter would be restricted. . . .@>is timidity in the face of his absolute criminal liability thus would tend torestrict the publicJs access to forms of the printed word which the -tate couldnot constitutionally suppress directly. 'he boo"sellerJs self1censorship,compelled by the -tate, would be a censorship affectin the whole public,hardly less virulent for bein privately administered. 'hrouh it, thedistribution of all boo"s, both obscene and not obscene, would be impeded.5

2 %7# . -. %7# .-. #&9, %7# . -. #+%1#+&.4 A rule compellin the critic of officialconduct to uarantee the truth of all his factual assertions 11 and to do so on pain of libel judments virtually unlimited in amount 11 leads to a comparable 5self1censorship.5 Allowance of the defense of truth, with the burden of provin it on thedefendant, does not mean that only false speech will be deterred. @ #? Even courtsacceptin this defense as an ade8uate safeuard have reconied the difficulties of adducin leal proofs that the alleed libel was true in all its factual particulars. See#e.g.# &ost &u+lishing Co. v. 7allam# +? :. +%(, +&( 2C.A. 7th Cir. #;?%4L see also Noel,<efamation of ublic )fficers and Candidates, &? Col.3.=ev. ;9+, ;?$ 2#?&?4. nder such a rule, would1be critics of official conduct may be deterred from voicin their criticism, even thouh it is believed to be true and even thouh it is, in fact, true,because of doubt whether it can be proved in court or fear of the expense of havin todo so. 'hey tend to ma"e only statements which 5steer far wider of the unlawful

one.5 S"eiser v. /andall# su"ra# %+9 .-. at %+9 . -. +$7. 'he rule thus dampensthe vior and limits the variety of public debate. It is inconsistent with the :irst and:ourteenth Amendments. 'he constitutional uarantees re8uire, we thin", a federalrule that prohibits a public official from recoverin damaes for a defamatoryfalsehood relatin to his official conduct unless he proves that the statement wasmade with 5actual malice5 11 that is, with "nowlede that it was false or with rec"lessdisreard of whether it was false or not. An oft1cited statement of a li"e rule, whichhas been adopted by a number of state courts, @ $( is found in the Fansas case of Coleman v. MacLennan# 9; Fan. 9##, ?; . $;# 2#?(;4. 'he -tate Attorney /eneral, acandidate for reelection and a member of the commission chared with themanaement and control of the state school fund, sued a newspaper publisher for alleed libel in an article purportin to state facts relatin to his official conduct inconnection with a school1fund transaction. 'he defendant pleaded privilee and thetrial jude, over the plaintiffJs objection, instructed the jury that

5where an article is published and circulated amon voters for the solepurpose of ivin what the defendant believes to be truthful informationconcernin a candidate for public office and for the purpose of enablin suchvoters to cast their ballot more intelliently, and the whole thin is done inood faith and without malice, the article is privileed, althouh the principalmatters contained in the article may be untrue, in fact, and deroatory to thecharacter of the plaintiff, and in such a case the burden is on the plaintiff toshow actual malice in the publication of the article.5

In answer to a special 8uestion, the jury found that the plaintiff had not proved actual

malice, and a eneral verdict was returned for the defendant. )n appeal, the-upreme Court of Fansas, in an opinion by *ustice Burch, reasoned as follows 29;Fan., at 9$&, ?; . at $;74

5It is of the utmost conse8uence that the people should discuss thecharacter and 8ualifications of candidates for their suffraes. 'he importanceto the state and to society of such discussions is so vast, and theadvantaes derived are so reat, that they more than counterbalance theinconvenience of private persons whose conduct may be involved, andoccasional injury to the reputations of individuals must yield to the publicwelfare, althouh at times such injury may be reat. 'he public benefit frompublicity is so reat, and the chance of injury to private character so small,that such discussion must be privileed.5

'he court thus sustained the trial courtJs instruction as a correct statement of the law,sayin

5In such a case the occasion ives rise to a privilee, 8ualified to this extentany one claimin to be defamed by the communication must show actualmalice or o remediless. 'his privilee extends to a reat variety of subjects,and includes matters of public concern, public men, and candidates for office.5

9; Fan. at 9$%, ?; . at $;+.

-uch a privilee for criticism of official conduct @ $# is appropriately analoous to theprotection accorded a public official when he is sued for libel by a private citien. InBarr v. Matteo# %7( . -. +7&, %7( . -. +9+, this Court held the utterance of a federal

official to be absolutely privileed if made 5within the outer perimeter5 of his duties.'he -tates accord the same immunity to statements of their hihest officers, althouhsome differentiate their lesser officials and 8ualify the privilee they enjoy. @ $$ But allhold that all officials are protected unless actual malice can be proved. 'he reason for the official privilee is said to be that the threat of damae suits would otherwise5inhibit the fearless, viorous, and effective administration of policies of overnment5and 5dampen the ardor of all but the most resolute, or the most irresponsible, in theunflinchin dischare of their duties.5 Barr v. Matteo# su"ra# %7( .-. at %7( . -.+9#. Analoous considerations support the privilee for the citien1critic of overnment. It is as much his duty to criticie as it is the officialJs duty to administer.See Whitney v. California# $9& . -. %+9, $9& . -. %9+ 2concurrin opinion of 0r.*ustice Brandeis4, 8uoted su"ra# p. %97 . -. $9(. As 0adison said, see su"ra p. %97. -. $9+, 5the censorial power is in the people over the /overnment, and not in the

/overnment over the people.5 It would ive public servants an unjustified preference









































over the public they serve, if critics of official conduct did not have a fair e8uivalent of the immunity ranted to the officials themselves.

!e conclude that such a privilee is re8uired by the :irst and :ourteenth Amendments.

III

!e hold today that the Constitution delimits a -tateJs power to award damaes for libel in actions brouht by public officials aainst critics of their official conduct. -ince

this is such an action, @ $% the rule re8uirin proof of actual malice is applicable.!hile Alabama law apparently re8uires proof of actual malice for an award of punitivedamaes, @ $& where eneral damaes are concerned malice is 5presumed.5 -uch apresumption is inconsistent with the federal rule. 5'he power to create presumptionsis not a means of escape from constitutional restrictions,5 Bailey v. Ala+ama# $#? .-. $#?, $#? . -. $%?, 5the showin of malice re8uired for the forfeiture of theprivilee is not presumed but is a matter for proof by the plaintiff. . . .5 La*rence v.5ox# %+9 0ich. #%&, #&7, ?9 N.!.$d 9#?, 9$+ 2#?+?4. @ $+ -ince the trial jude didnot instruct the jury to differentiate between eneral and punitive damaes, it may bethat the verdict was wholly an award of one or the other. But it is impossible to "now,in view of the eneral verdict returned. Because of this uncertainty, the judment mustbe reversed and the case remanded. Strom+erg v. California# $;% . -. %+?, $;% .-. %791%7;L Williams v. )orth Carolina# %#9 . -. $;9, %#9 . -. $?#1$?$L see atesv. 0nited States# %+& . -. $?;, %+& . -. %##1%#$L Cramer v. 0nited States# %$+ .

-. #, %$+ . -. %7, n. &+.

-ince respondent may see" a new trial, we deem that considerations of effective judicial administration re8uire us to review the evidence in the present record todetermine whether it could constitutionally support a judment for respondent. 'hisCourtJs duty is not limited to the elaboration of constitutional principlesL we must alsoin proper cases review the evidence to ma"e certain that those principles have beenconstitutionally applied. 'his is such a case, particularly since the 8uestion is one of alleed trespass across 5the line between speech unconditionally uaranteed andspeech which may leitimately be reulated.5 S"eiser v. /andall# %+9 . -. +#%, %+9. -. +$+. In cases where that line must be drawn, the rule is that we

5examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which theprinciples of the :irst Amendment, as adopted by the <ue rocess Clause of the :ourteenth Amendment, protect.5

&enne%am" v. 5lorida# %$; . -. %%#, %$; . -. %%+L see also One# 6nc.# v. Olesen#%++ . -. %9#L Sunshine Boo% Co. v. Summerfield# %++ . -. %9$. !e must 5ma"e anindependent examination of the whole record,5 Ed*ards v. South Carolina# %9$ . -.$$?, %9$ . -. $%+, so as to assure ourselves that the judment does not constitute aforbidden intrusion on the field of free expression. @ $7

Applyin these standards, we consider that the proof presented to show actual malicelac"s the convincin clarity which the constitutional standard demands, and hencethat it would not constitutionally sustain the judment for respondent under the proper rule of law. 'he case of the individual petitioners re8uires little discussion. Evenassumin that they could constitutionally be found to have authoried the use of their names on the advertisement, there was no evidence whatever that they were aware

of any erroneous statements or were in any way rec"less in that reard. 'he judment aainst them is thus without constitutional support.

As to the 'imes, we similarly conclude that the facts do not support a findin of actualmalice. 'he statement by the 'imesJ -ecretary that, apart from the padloc"inalleation, he thouht the advertisement was 5substantially correct,5 affords noconstitutional warrant for the Alabama -upreme CourtJs conclusion that it was a

5cavalier inorin of the falsity of the advertisement @from which the jurycould not have but been impressed with the bad faith of 'he 'imes, and its

maliciousness inferable therefrom.5

'he statement does not indicate malice at the time of the publicationL even if theadvertisement was not 5substantially correct5 11 althouh respondentJs own proofstend to show that it was 11 that opinion was at least a reasonable one, and there wasno evidence to impeach the witnessJ ood faith in holdin it. 'he 'imesJ failure toretract upon respondentJs demand, althouh it later retracted upon the demand of /overnor atterson, is li"ewise not ade8uate evidence of malice for constitutionalpurposes. !hether or not a failure to retract may ever constitute such evidence, thereare two reasons why it does not here. :irst, the letter written by the 'imes reflected areasonable doubt on its part as to whether the advertisement could reasonably beta"en to refer to respondent at all. -econd, it was not a final refusal, since it as"ed for an explanation on this point 11 a re8uest that respondent chose to inore. Nor doesthe retraction upon the demand of the /overnor supply the necessary proof. It may

be doubted that a failure to retract, which is not itself evidence of malice, canretroactively become such by virtue of a retraction subse8uently made to another party. But, in any event, that did not happen here, since the explanation iven by the'imesJ -ecretary for the distinction drawn between respondent and the /overnor wasa reasonable one, the ood faith of which was not impeached.

:inally, there is evidence that the 'imes published the advertisement without chec"inits accuracy aainst the news stories in the 'imesJ own files. 'he mere presence of the stories in the files does not, of course, establish that the 'imes 5"new5 theadvertisement was false, since the state of mind re8uired for actual malice wouldhave to be brouht home to the persons in the 'imesJ oraniation havinresponsibility for the publication of the advertisement. !ith respect to the failure of those persons to ma"e the chec", the record shows that they relied upon their

"nowlede of the ood reputation of many of those whose names were listed assponsors of the advertisement, and upon the letter from A. hilip =andolph, "nown tothem as a responsible individual, certifyin that the use of the names was authoried.'here was testimony that the persons handlin the advertisement saw nothin in itthat would render it unacceptable under the 'imesJ policy of rejectin advertisementscontainin 5attac"s of a personal character5L @ $9 their failure to reject it on thisround was not unreasonable. !e thin" the evidence aainst the 'imes supports, atmost, a findin of nelience in failin to discover the misstatements, and isconstitutionally insufficient to show the rec"lessness that is re8uired for a findin of actual malice. Cf. Charles &ar%er Co. v. Silver City Crystal Co.# #&$ Conn. 7(+, 7#;,##7 A.$d &&(, &&7 2#?++4L &hoenix )e*s"a"ers# 6nc.# v. Choisser# ;$ Ari. $9#, $991$9;, %#$ .$d #+(, #+&1#++ 2#?+94.

!e also thin" the evidence was constitutionally defective in another respect it was

incapable of supportin the juryJs findin that the alleedly libelous statements weremade 5of and concernin5 respondent. =espondent relies on the words of the




























































advertisement and the testimony of six witnesses to establish a connection between itand himself. 'hus, in his brief to this Court, he states

5'he reference to respondent as police commissioner is clear from the ad. Inaddition, the jury heard the testimony of a newspaper editor . . . L a realestate and insurance man . . . L the sales manaer of a menJs clothin store .. . L a food e8uipment man . . . L a service station operator . . . , and theoperator of a truc" line for whom respondent had formerly wor"ed. . . . Eachof these witnesses stated that he associated the statements withrespondent. . . .5

2Citations to record omitted.4 'here was no reference to respondent in theadvertisement, either by name or official position. A number of the alleedly libelousstatements 11 the chares that the dinin hall was padloc"ed and that <r. FinJs homewas bombed, his person assaulted, and a perjury prosecution instituted aainst him 11did not even concern the policeL despite the inenuity of the aruments which wouldattach this sinificance to the word 5'hey,5 it is plain that these statements could notreasonably be read as accusin respondent of personal involvement in the acts in8uestion. 'he statements upon which respondent principally relies as referrin to himare the two alleations that did concern the police or police functions that 5truc"loadsof police . . . rined the Alabama -tate Collee Campus5 after the demonstration onthe -tate Capitol steps, and that <r. Fin had been 5arrested . . . seven times.5 'hesestatements were false only in that the police had been 5deployed near5 the campus,but had not actually 5rined5 it, and had not one there in connection with the -tateCapitol demonstration, and in that <r. Fin had been arrested only four times. 'herulin that these discrepancies between what was true and what was asserted weresufficient to injure respondentJs reputation may itself raise constitutional problems, butwe need not consider them here. Althouh the statements may be ta"en as referrinto the police, they did not, on their face, ma"e even an obli8ue reference torespondent as an individual. -upport for the asserted reference must, therefore, besouht in the testimony of respondentJs witnesses. But none of them suested anybasis for the belief that respondent himself was attac"ed in the advertisement beyondthe bare fact that he was in overall chare of the olice <epartment and thus boreofficial responsibility for police conductL to the extent that some of the witnessesthouht respondent to have been chared with orderin or approvin the conduct or otherwise bein personally involved in it, they based this notion not on anystatements in the advertisement, and not on any evidence that he had, in fact, been

so involved, but solely on the unsupported assumption that, because of his officialposition, he must have been. @ $; 'his reliance on the bare fact of respondentJsofficial position @ $? was made explicit by the -upreme Court of Alabama. 'hat court,in holdin that the trial court 5did not err in overrulin the demurrer @of the 'imes inthe aspect that the libelous matter was not of and concernin the @plaintiff,5 based itsrulin on the proposition that

5!e thin" it common "nowlede that the averae person "nows thatmunicipal aents, such as police and firemen, and others, are under thecontrol and direction of the city overnin body, and more particularly under the direction and control of a sinle commissioner. In measurin theperformance or deficiencies of such roups, praise or criticism is usuallyattached to the official in complete control of the body.5

$9% Ala., at 79&179+, #&& -o.$d at %?.

'his proposition has dis8uietin implications for criticism of overnmental conduct.:or ood reason,

5no court of last resort in this country has ever held, or even suested, thatprosecutions for libel on overnment have any place in the American systemof jurisprudence.5

City of Chicago v. 3ri+une Co.# %(9 Ill. +?+, 7(#, #%? N.E. ;7, ;; 2#?$%4. 'he presentproposition would sidestep this obstacle by transmutin criticism of overnment,however impersonal it may seem on its face, into personal criticism, and hence

potential libel, of the officials of whom the overnment is composed. 'here is no lealalchemy by which a -tate may thus create the cause of action that would otherwisebe denied for a publication which, as respondent himself said of the advertisement,5reflects not only on me but on the other Commissioners and the community.5 =aisinas it does the possibility that a ood faith critic of overnment will be penalied for hiscriticism, the proposition relied on by the Alabama courts stri"es at the very center of the constitutionally protected area of free expression. @ %( !e hold that such aproposition may not constitutionally be utilied to establish that an otherwiseimpersonal attac" on overnmental operations was a libel of an official responsible for those operations. -ince it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence wasconstitutionally insufficient to support a findin that the statements referred torespondent.

'he judment of the -upreme Court of Alabama is reversed, and the case isremanded to that court for further proceedins not inconsistent with this opinion.

/eversed and remanded.



SOCIAL EA/HER S/A/ION V. CO!ELEC

-EC)N< <II-I)N

G.R. No. 151 !ay 5, 2001

SOCIAL EA/HER S/A/IONS, INCORORA/E* a# A!AHALANLISHING CORORA/ION, o"#9 bu%"#e%% a% !ANILA S/AN*AR*,petitioners,vs.

CO!!ISSION ON ELEC/IONS, respondent.!EN*OZA, J .

etitioner, -ocial !eather -tations, Inc. 2-!-4, is a private non1stoc", non1profitsocial research institution conductin surveys in various fields, includin economics,politics, demoraphy, and social development, and thereafter processin, analyin,and publicly reportin the results thereof. )n the other hand, petitioner Famahalanublishin Corporation publishes the Manila Standard# a newspaper of eneralcirculation, which features news1 worthy items of information includin electionsurveys.

etitioners brouht this action for prohibition to enjoin the Commission on Electionsfrom enforcin R+.& of =A. No.?((7 2:air Election Act4, which provides

-urveys affectin national candidates shall not be published fifteen 2#+4 daysbefore an election and surveys affectin local candidates shall not bepublished seven 294 days be1 fore an election.

'he term 5election surveys5 is defined in R+.# of the law as follows

Election surveys refer to the measurement of opinions and perceptions of the voters as reards a candidateJs popularity, 8ualifications, platforms or amatter of public discussion in relation to the election, includin voterspreference for candidates or publicly discussed issues durin the campainperiod 2hereafter referred to as 5-urvey54.

'he implement R+.&, =esolution %7%7, R$&2h4, dated 0arch #, $((#, of theC)0E3EC enjoins M

-urveys affectin national candidates shall not be published fifteen 2#+4 daysbefore an election and surveys affectin local candidates shall not bepublished seven 294 days be1 fore an election.

etitioner -!- states that it wishes to conduct an election survey throuhout theperiod of the elections both at the national and local levels and release to the mediathe results of such survey as well as publish them directly. etitioner Famahalanublishin Corporation, on the other hand, states that it intends to publish electionsurvey results up to the last day of the elections on 0ay #&,$((#.

etitioners arue that the restriction on the publication of election survey resultsconstitutes a prior restraint on the exercise of freedom of speech without any clear and present daner to justify such restraint. 'hey claim that -!- and other pollsters

conducted and published the results of surveys prior to the #??$, #??+, and #??;elections up to as close as two days before the election day without causin

confusion amon the voters and that there is neither empirical nor historical evidenceto support the conclusion that there is an immediate and inevitable daner to tilevotin process posed by election surveys. 'hey point out that no similar restriction isimposed on politicians from explainin their opinion or on newspapers or broadcastmedia from writin and publishin articles concernin political issues up to the day of the election. Conse8uently, they contend that there is no reason for ordinary voters tobe denied access to the results of election surveys, which are relatively objective.

=espondent Commission on Elections justifies the restrictions in R+.& of =.A. No.?((7 as necessary to prevent the manipulation and corruption of the electoral

process by unscrupulous and erroneous surveys just before the election. It contendsthat 2#4 the prohibition on the publication of election survey results durin the periodproscribed by law bears a rational connection to the objective of the law, i.e.# theprevention of the debasement of the electoral process resultin from manipulatedsurveys, bandwaon effect, and absence of replyL 2$4 it is narrowly tailored to meetthe 5evils5 souht to be preventedL and 2%4 the impairment of f reedom of expression isminimal, the restriction bein limited both in duration, i.e.# the last #+ days before thenational election and the last 9 days before a local election, and in scope as it doesnot prohibit election survey results but only re8uire timeliness. =espondent claimsthat in )ational &ress Clu+ v. COMELEC## a total ban on political advertisements, withcandidates bein merely allocated broadcast time durin the so1called C)0E3ECspace or C)0E3EC hour, was upheld by this Court. In contrast, accordin torespondent, it states that the prohibition in R+.& of =A. No. ?((7 is much more limited.

:or reasons hereunder iven, we hold that R+.& of =.A. No. ?((7 constitutes anunconstitutional abridment of freedom of speech, expression, and the press.

'o be sure, R+.& Iays a prior restraint on freedom of speech, expression, and thepress prohibitin the publication of election survey results affectin candidates withinthe prescribed periods of fifteen 2#+4 days immediately precedin a national electionseven 294 days before a local election. Because of tile preferred status of tileconstitutional rihts of speech, expression, and he press, such a measure is vitiatedby a weihty presumption of invalidity.$ Indeed, any system of prior restraints of expression comes to this Court bearin a heavy resumption aainst its constitutionalvalidity. ...'he /overnment thus carries a heavy burden of showin justification for inenforcement of such restraint. 5J% 'here, thus a reversal of the normal presumption of validity that inheres in every leislation.

Nor may it be arued that because of Art. IT1C, R& of the Constitution, which ives theC)0E3EC supervisory power to reulate the enjoyment or utiliation of franchise for the operation of media of communication, no presumption of invalidity attaches to ameasure li"e R+.&. :or as we have pointed out in sustainin tile ban on media politicaladvertisements, the rant of power to the C)0E3EC under Art. IT1C, R& is limited toensurin 5e8ual opportunity, time, space, and the riht to reply5 as well as uniform andreasonable rates of chares for the use of such media facilities 5public informationcampains and forums amon candidates.5& 'his Court stated

'he technical effect of Article IT 2C4 2&4 of the Constitution may be seen to bethat no presumption of invalidity arises in respect of exercises of supervisoryor reulatory authority on the part of the Comelec for the urpose of securin e8ual opportunity amon candidates for political office, althouh

such supervision or reulation may result in some limitation of the rihts of free speech and free press.+



0= *-'ICE FANAN dissents. >e rejects as inappropriate the test of clear andpresent daner for determinin the validity of R+.&. Indeed, as has been pointed out inOsmeña v. COMELEC#7 this test was oriinally formulated for the criminal law andonly later appropriated for free speech cases. >ence, while it may be useful for determinin the validity of laws dealin with incitin to sedition or incendiary speech,it may not +e ade8uate for such reulations as the one in 8uestion. :or such a test isconcerned with 8uestions of the ravity and imminence of the daner as basis for curtailin free speech, which is not the case of R+.& and similar reulations.

Instead, 0= *-'ICE FANAN purports to enae in a form of balancin by

5weihin and balancin the circumstances to determine whether public interest @infree, orderly, honest# peaceful and credible elections is served by the reulation of the free enjoyment of the rihts5 2pae 94. After canvassin the reasons for theprohibition# i.e., to prevent last1minute pressure on voters, the creation of bandwaoneffect to favor candidates, misinformation, the jun"in5 of wea" and 5losin5candidates by their parties, and the form of election cheatin called 5dada1bawas5and invo"in the -tateJs power to supervise media of information durin the electionperiod 2paes ##1#7 (# the dissentin opinion simply concludes

iewed in the liht of the leitimate and sinificant objectives of -ection +.&,It may be seen that its limitin impact on the rihts of free speech and of thepress is not unduly repressive or unreasonable. In Indeed, it is a mererestriction, not an absolute prohibition, on the publication of election surveys.It is limited in durationL it applies only durin the period when the voters arepresumably contemplatin whom they should elect and when they are mostsusceptible to such unwarranted persuasion. 'hese surveys may bepublished thereafter. 2aes #91#;4

'he dissent does not, however, show why, on balance, these considerations shouldoutweih the value of freedom of expression. Instead, reliance is placed on Art. IT1C,R&. As already stated, the purpose of Art. IT1C, R& is to 5ensure e8ual opportunity,time, and space and the riht of reply, includin reasonable, e8ual rates therefor for public information campains and forums amon candidates. 5 >ence the validity of the ban on media advertisin. It is noteworthy that =.A. No. ?((7, R #& has lifted theban and now allows candidates to advertise their candidacies in print and broadcastmedia. Indeed, to sustain the ban on the publication of survey results would sanctionthe censorship of all spea"in by candidates in an election on the round that the

usual bombasts and hyperbolic claims made durin the campains can confusevoters and thus debase the electoral process.

In sum, the dissent has enaed only in a balancin at the marin. 'his form of adhoc balancin predictably results in sustainin the challened leislation and leavesfreedom of speech, expression, and the press with little protection. :or anyone whocan brin a plausible justification forward can easily show a rational connectionbetween the statute and a leitimate overnmental purpose. In contrast, thebalancin of interest underta"en by then *ustice Castro in ,onales v. COMELEC#=

from which the dissent in this case ta"es its cue, was a stron one resultin in hisconclusion that , R+(1B of =.A. No. &;;(, which limited the period of electioncampain and partisan political activity, was an unconstitutional abridment of freedom of expression.

Nor can the ban on election surveys be justified on the round that there are other countries 1 9;, accordin to the -olicitor /eneral, while the dissent cites $; 1 which

similarly impose restrictions on the publication of election surveys. At best this surveyis inconclusive. It is note worthy that in the nited -tates no restriction on thepublication of election survey results exists. It cannot be arued that this is becausethe nited -tates is a mature democracy. Neither are there laws imposin anembaro on survey results, even for a limited period, in other countries. As pointedout by petitioners, the nited Findom, Austria, Belium, <enmar", Estonia, :inland,Iceland, Ireland, 3atvia, 0alta, 0acedonia, the Netherlands, Norway, -weden, and"raine, some of which are no older nor more mature than the hilippines in politicaldevelopment, do not restrict the publication of election survey results.

!hat test should then be employed to determine the constitutional validity of R+.&S'he nited -tates -upreme Court, throuh Chief *ustice !arren, held in 0nited States v. ) >Brien

@A /overnment reulation is sufficiently justified @# if it is within theconstitutional power of the /overnmentL @$ if it furthers an important or substantial overnmental interestL @% if the overnmental interest isunrelated to the suppression of free expressionL and @& if the incidentalrestriction on alleed :irst Amendment freedoms @of speech, expression andpress is no reater than is essential to the furtherance of that interest.;

'his is so far the most influential test for distinuishin content1based from contentneutral reulations and is said to have 5become canonical in the review of suchlaws.5? is noteworthy that the O >Brien test has been applied by this Court in at least

two cases.#(

nder this test, even if a law furthers an important or substantial overnmentalinterest, it should be invalidated if such overnmental interest is 5not unrelated to theExpression of free expression.5 0oreover, even if the purpose is unrelated to thesuppression of free speech, the law should nevertheless be invalidated if therestriction on freedom of expression is reater than is necessary to achieve theovernmental purpose in 8uestion.

)ur in8uiry should accordinly focus on these two considerations as applied to R+.&.

:irst. -ec. +.& fails to meet criterion @% of the ) >Brien test because the causalconnection of expression to the asserted overnmental interest ma"es such interest5not related to the suppression of free expression.5 By prohibitin the publication of

election survey results because of the possibility that such publication mihtundermine the interity of the election, R+.& actually suppresses a whole class of expression, while allowin the expression of opinion concernin the same subjectmatter by newspaper columnists, radio and ' commentators, armchair theorists, andother opinion ta"ers. In effect, R+.& shows a bias for a particular subject matter, if notviewpoint, by referrin personal opinion to statistical results. 'he constitutionaluarantee of freedom of expression means that 5the overnment has no power torestrict expression because of its messae, its ideas, its subject matter, or itscontent.5## 'he inhibition of speech should be upheld only if the expression falls withinone of the few unprotected cateories dealt with in Cha"lins%y v. )e* 7am"shire# #$

thus

'here are certain well1defined and narrowly limited classes of speech, theprevention and punishment of which have never been thouht to raise anyConstitutional problem. 'hese include the lewd and obscene, the profane,



the libelous, and the insultin or JfihtinJ words 1 those which by their veryutterance inflict injury or tend to incite an immediate breach of the peace.@-uch utterances are no essential part of any exposition of ideas, and are of such sliht social value as a step to truth that any benefit that may bederived from them is clearly outweihed by the social interest in order andmorality

Nor is there justification for the prior restraint which R+.&Iays on protected speech.)ear v. Minnesota##% it was held

@'he protection even as to previous restraint is not absolutely unlimited. Butthe limitation has been reconied only in exceptional casesK. No onewould 8uestion but that a overnment miht prevent actual obstruction to itsrecruitin service or the publication of the sailin dates transports or thenumber and location of troops. )n similar rounds, the primary re8uirementsof decency may be enforced aainst obscene publications. 'he security of the community life may be protected aainst incitements to acts of violenceand overthrow by force of orderly overnmentK

'hus, contrary to the claim of the -olicitor /eneral, the prohibition imposed by R+.&cannot be justified on the round that it is only for a limited period and is onlyincidental. 'he prohibition may be for a limited time, but the curtailment of the riht of expression is direct, absolute, and substantial. It constitutes a total suppression of acateory of speech and is not made less so because it is only for a period of fifteen

2#+4 days immediately before a national election and seven 294 days immediatelybefore a local election. ..

'his sufficiently distinuishes R+.& from =.A. No. 77&7, R##2b4, which this Court foundto be valid in )ational &ress Clu+ v. COMELEC##& and Osmeña v. COMELEC.#+ :or the ban imposed by =.A. No. 77&7, R##2b4 is not only authoried by a specificconstitutional provision,#7 but it also provided an alternative so that, as this Courtpointed out in Osmeña# there was actually no ban but only a substitution of mediaadvertisements by the C)0E3EC space and C)0E3EC hour.

Second . Even if the overnmental interest souht to be promoted is unrelated to thesuppression of speech and the resultin restriction of free expression is onlyincidental, R+.& nonetheless fails to meet criterion @& of the ) >Brien test, namely, thatthe restriction be not reater than is necessary to further the overnmental interest.

As already stated, R+.& aims at the prevention of last1minute pressure on voters, thecreation of bandwaon effect, 5jun"in5 of wea" or 5losin5 candidates, and resort tothe form of election cheatin called 5dada1bawas.5 raiseworthy as these aims of the reulation miht be, they cannot be attained at the sacrifice of the fundamentalriht of expression, when such aim can be more narrowly pursued by punishinunlawful acts# rather than s"eech because of apprehension that such speech createsthe daner of such evils. 'hus, under the Administrative Code of #?;9,#9 theC)0E3EC is iven the power

'o stop any illeal activity, or confiscate, tear down, and stop any unlawful,libelous, misleadin or false election propaanda, after due notice andhearin.

'his is surely a less restrictive means than the prohibition contained in R+.&. ursuantto this power of the C)0E3EC, it can confiscate bous survey results calculated to

mislead voters. Candidates can have their own surveys conducted. No riht of replycan be invo"ed by others. No principle of e8uality is involved. It is a free mar"et towhich each candidate brins his ideas. As for the purpose of the law to preventbandwaon effects, it is doubtful whether the /overnment can deal with this natural1enouh tendency of some voters. -ome voters want to be identified with the5winners.5 -ome are susceptible to the herd mentality. Can these be leitimatelyprohibited by suppressin the publication of survey results, which are a form of expressionS It has been held that 5@mere leislative preferences or beliefs respectinmatters of public convenience may well support reulation directed at other personalactivities, but be insufficient to justify such as diminishes the exercise of rihts so vital

to the maintenance of democratic institutions.5#;

'o summarie then, we hold that R+.& is invalid because 2#4 it imposes a prior restraint on the freedom of expression, 2$4 it is a direct and total suppression of acateory of expression even thouh such suppression is only for a limited period, and2%4 the overnmental interest souht to be promoted can be achieved by means other than suppression of freedom of expression.

)n the other hand, the C)0E3EC contends that under Art. IT1A, R9 of theConstitution, its decisions, orders, or resolution may be reviewed by this Court onlycertiorari. 'he flaws in this arument is that it assumes that its =esolution %7%7,0arch #, $((# is a 5decision, order, or resolution5 within the meanin of Art. IT1A, R9.Indeed, counsel for C)0E3EC maintain that =esolution %7%7 was 5rendered5 by theCommission. >owever, the =esolution does not purport to adjudicate the riht of anyparty. It is not an exercise by the C)0E3EC of its adjudicatory power to settle theclaims of parties. 'o the contrary, =esolution %7%7 clearly states that it is promulatedto implement the provisions of =.A. No. ?((7. >ence, there is no basis for C)0E3ECJs claim that this petition for prohibition is inappropriate. rohibition hasbeen fund appropriate for testin the constitutionality of various election laws, rules,and reulations.#?

HEREFORE, the petition for prohibited /=AN'E< and R+.& of =.A. No. ?((7R$&2h4 of C)0E3EC =esolution %7%7, 0arch #, $((#, are declared unconstitutional.?@*"hi?.nt

-) )=<E=E<.



G!A NE/OR, INC. V. CO!ELEC

EN BANC

G.R. No. 20535 Se'(e+ber 2, 201

G!A NE/OR, INC., etitioner,vs.CO!!ISSION ON ELEC/IONS, =espondent.SENA/OR ALAN E/ER 1C20PA3ER21 S. CAE/ANO, etitioner1Intervenor.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 2053

AC *EVELO!EN/ CORORA/ION, etitioner,vs.CO!!ISSION ON ELEC/IONS, =espondent.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 20552

!ANILA ROA*CAS/ING CO!AN, INC. a# NESON*S ROA*CAS/INGNE/OR, INC., etitioner,

vs.CO!!ISSION ON ELEC/IONS, =espondent.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 205852

AISANAN NG !GA RO*AS/ER NG ILIINAS a# ASBCNCORORA/ION, etitioners,vs.CO!!ISSION ON ELEC/IONS, =espondent.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 206360

RA*IO !IN*ANAO NE/OR, INC., etitioner,vs.CO!!ISSION ON ELEC/IONS, =espondent.

* E C I S I O N

ERAL/A, J.:

5'he clash of rihts demands a delicate balancin of interests approach which is aJfundamental postulate of constitutional law.J5#

)nce aain the Court is as"ed to draw a carefully drawn balance in the incessantconflicts between rihts and reulations, liberties and limitations, and competin

demands of the different sements of society. >ere, we are confronted with the needto stri"e a wor"able and viable e8uilibrium between a constitutional mandate to

maintain free, orderly, honest, peaceful and credible elections, toether with the aimof ensurin e8ual opportunity, time and space, and the riht to reply, includinreasonable, e8ual rates therefor, for public information campains and forums amoncandidates,$ on one hand, and the imperatives of a republican and democratic state, %

toether with its uaranteed rihts of suffrae,& freedom of speech and of the press, +

and the peopleJs riht to information,7 on the other.

In a nutshell, the present petitions may be seen as in search of the answer to the8uestion 1 $o7 oe% ($e C$ar(er o) a re'ub"&a# a# e+o&ra("& S(a(e a&$"e;e a;"abe a# a&&e'(abe baa#&e be(7ee# "ber(y, 7"($ou( 7$"&$, 9o;er#+e#(

be&o+e% a# u#bearabe (yra#(, a# au($or"(y, 7"($ou( 7$"&$, %o&"e(y be&o+e%a# "#(oerabe a# a#9erou% arra#9e+e#(K

Assailed in these petitions are certain reulations promulated by the Commission onElections 2C)0E3EC4 relative to the conduct of the $(#% national and local electionsdealin with political advertisements. -pecifically, the petitions 8uestion theconstitutionality of the limitations placed on areate airtime allowed to candidatesand political parties, as well as the re8uirements incident thereto, such as the need toreport the same, and the sanctions imposed for violations.

'he five 2+4 petitions before the Court put in issue the alleed unconstitutionality of -ection ? 2a4 of C)0E3EC =esolution No. ?7#+ 2=esolution4 limitin the broadcastand radio advertisements of candidates and political parties for national electionpositions to an areate total of one hundred twenty 2#$(4 minutes and one hundred

eihty 2#;(4 minutes, respectively. 'hey contend that such restrictive reulation onallowable broadcast time violates freedom of the press, impairs the peopleJs riht tosuffrae as well as their riht to information relative to the exercise of their riht tochoose who to elect durin the forth comin elections.

'he heart of the controversy revolves upon the proper interpretation of the limitationon the number of minutes that candidates may use for television and radioadvertisements, as provided in -ection 7 of =epublic Act No. ?((7 2=.A. No. ?((74,otherwise "nown as the :air Election Act. ertinent portions of said provision state,thus

-ec. 7. E8ual Access to 0edia 'ime and -pace. 1 All reistered parties andbona fide candidates shall have e8ual access to media time and space. 'hefollowin uidelines may be amplified on by the C)0E3EC

x x x x

7.$ 2a4 Each bona fide candidate or reistered political party for a nationallyelective office shall be entitled to not more than one hundred twenty 2#$(4minutes of television advertisement and one hundred eihty 2#;(4 minutes of radio advertisement whether by purchase or donation.

b. Each bona fide candidate or reistered political party for a locally electiveoffice shall be entitled to not more than sixty 2 7(4 minutes of televisionadvertisement and ninety 2?(4 minutes of radio advertisement whether bypurchase or donation.

:or this purpose, the C)0E3EC shall re8uire any broadcast station or entity

to submit to the C)0E3EC a copy of its broadcast los and certificates of



performance for the review and verification of the fre8uency, date, time andduration of advertisements broadcast for any candidate or political party.

<urin the previous elections of 0ay #&, $((9 and 0ay #(, $(#(, C)0E3EC issued=esolutions implementin and interpretin -ection 7 of =.A. No. ?((7, reardinairtime limitations, to mean that a candidate is entitled to the aforestated number of minutes 5per station.59 :or the 0ay $(#% elections, however, respondent C)0E3ECpromulated =esolution No. ?7#+ dated *anuary #+, $(#%, chanin theinterpretation of said candidatesJ and political partiesJ airtime limitation for politicalcampains or advertisements from a 5per station5 basis, to a 5 total areate5 basis.

etitioners AB-1CBN Corporation 2AB-1CBN4, ABC <evelopment Corporation 2ABC4,/0A Networ", Incorporated 2 /0A4, 0anila Broadcastin Company, Inc. 20BC4,Newsounds Broadcastin Networ", Inc. 2NBN4, and =adio 0indanao Networ", Inc.2=0N4 are ownersDoperators of radio and television networ"s in the hilippines, whilepetitioner Fapisanan n ma Brod"aster n ilipinas 2FB4 is the nationaloraniation of broadcastin companies in the hilippines representin operators of radio and television stations and said stations themselves. 'hey sent their respectiveletters to the C)0E3EC 8uestionin the provisions of the aforementioned =esolution,thus, the C)0E3EC held public hearins. 'hereafter, on :ebruary #, $(#%,respondent issued =esolution No. ?7%# amendin provisions of =esolution No. ?7#+.Nevertheless, petitioners still found the provisions objectionable and oppressive,hence, the present petitions.

All of the petitioners assail the followin provisions of the =esolution

a4 -ection 9 2d4,; which provides for a penalty of suspension or revocation of an offenderJs franchise or permit, imposes criminal liability aainstbroadcastin entities and their officers in the event they sell airtime in excessof the sie, duration, or fre8uency authoried in the new rulesL

b4 -ection ? 2a4,? which provides for an 5areate total5 airtime instead of the previous 5per station5 airtime for political campains or dvertisements,and also re8uired prior C)0E3EC approval for candidatesJ television andradio uestins and appearancesL and

c4 -ection #&,#( which provides for a candidateJs 5riht to reply.5

In addition, petitioner ABC also 8uestions -ection # 2&4##

thereof, which defines theterm 5political advertisement5 or 5election propaanda,5 while petitioner /0A further assails -ection %+, #$ which states that any violation of said =ules shall constitute anelection offense.

)n 0arch #+, $(#%, -enator Alan eter -. Cayetano 2etitioner1Intervenor4 filed a0otion for 3eave to Intervene and to :ile and Admit the etition1in1Intervention, whichwas ranted by the Court per its =esolution dated 0arch #?, $(#%. etitioner1Intervenor also assails -ection ? 2a4 of the =esolution chanin the interpretation of candidatesJ and political partiesJ airtime limitation for political campains or advertisements from a 5per station5 basis, to a 5total areate5 basis. etitionersallee that =esolutions No. ?7#+ and ?7%#, amendin the earlier =esolution, areunconstitutional and issued without jurisdiction or with rave abuse of discretionamountin to lac" or excess of jurisdiction, for the reasons set forth hereunder.

etitioners posit that -ection ? 2a4 of the assailed =esolution provides for a veryrestrictive areate airtime limit and a vaue meanin for a proper computation of 5areate total5 airtime, and violates the e8ual protection uarantee, therebydefeatin the intent and purpose of =.A. No. ?((7.

etitioners contend that -ection ? 2a4, which imposes a notice re8uirement, is vaueand infrines on the constitutionally protected freedom of speech, of the press and of expression, and on the riht of people to be informed on matters of public concern.

Also, -ection ? 2a4 is a cruel and oppressive reulation as it imposes an

unreasonable and almost impossible burden on broadcast mass media of monitorina candidateJs or political partyJs areate airtime, otherwise, it may incur administrative and criminal liability.

:urther, petitioners claim that -ection 9 2d4 is null and void for unlawfully criminaliinacts not prohibited and penalied as criminal offenses by =.A. No. ?((7.

-ection #& of =esolution No. ?7#+, providin for a candidateJs or political partyJs 5rihtto reply,5 is li"ewise assailed to be unconstitutional for bein an improper exercise of the C)0E3ECJs reulatory powersL for constitutin prior restraint and infrininpetitionersJ freedom of expression, speech and the pressL and for bein violative of the e8ual protection uarantee. In addition to the foreoin, petitioner /0A further arues that the =esolution was promulated without public consultations, in violationof petitionersJ riht to due process. etitioner ABC also avers that the =esolutionJs

definition of the terms 5political advertisement5 and 5election propaanda5 suffers fromoverbreadth, thereby producin a 5chillin effect,5 constitutin prior restraint.

)n the other hand, respondent posits in its Comment and )pposition #% dated 0arch;, $(#%, that the petition should be denied based on the followin reasons

=espondent contends that the remedies of certiorari and prohibition are not availableto petitioners, because the writ of certiorari is only available aainst the C)0E3ECJsadjudicatory or 8uasi1judicial powers, while the writ of prohibition only lies aainst theexercise of judicial, 8uasijudicial or ministerial functions. -aid writs do not lie aainstthe C)0E3ECJs administrative or rule1ma"in powers.

=espondent li"ewise allees that petitioners do not have locus standi, as theconstitutional rihts and freedoms they enumerate are not personal to them, rather,

they belon to candidates, political parties and the :ilipino electorate in eneral, asthe limitations are imposed on candidates, not on media outlets. It arues thatpetitionersJ alleed ris" of exposure to criminal liability is insufficient to ive them lealstandin as said 5fear of injury5 is hihly speculative and continent on a future act.

=espondent then parries petitionersJ attac" on the alleed infirmities of the=esolutionJs provisions.

=espondent maintains that the per candidate rule or total areate airtime limit is inaccordance with =.A. No. ?((7 as this would truly ive life to the constitutionalobjective to e8ualie access to media durin elections. It sees this as a more effectiveway of levellin the playin field between candidatesDpolitical parties with enormousresources and those without much. 0oreover, the C)0E3ECJs issuance of theassailed =esolution is pursuant to -ection &, Article IT 2C4 of the Constitution which

vests on the C)0E3EC the power to supervise and reulate, durin election periods,transportation and other public utilities, as well as mass media, to wit



-ec. &. 'he Commission may, durin the election period, supervise or reulate the enjoyment or utiliation of all franchises or permits for theoperation of transportation and other public utilities, media of communicationor information, all rants, special privilees, or concessions ranted by the/overnment or any subdivision, aency, or instrumentality thereof, includinany overnment1owned or controlled corporation or its subsidiary. -uchsupervision or reulation shall aim to ensure e8ual opportunity, and e8ualrates therefor, for public information campains and forums amoncandidates in connection with the objective of holdin free, orderly, honest,peaceful, and credible elections.

'his bein the case, then the =esolutions cannot be said to have been issued withrave abuse of discretion amountin to lac" of jurisdiction.

Next, respondent claims that the provisions are not vaue because the assailed=esolutions have iven clear and ade8uate mechanisms to protect broadcast stationsfrom potential liability arisin from a candidateJs or partyJs violation of airtime limits byputtin in the proviso that the station 5may re8uire buyer to warrant under oath thatsuch purchase @of airtime is not in excess of sie, duration or fre8uency authoried bylaw or these rules.5 :urthermore, words should be understood in the sense that theyhave in common usae, and should be iven their ordinary meanin. 'hus, in theprovision for the riht to reply, 5chares5 aainst candidates or parties must beunderstood in the ordinary sense, referrin to accusations or criticisms.

=espondent also sees no prior restraint in the provisions re8uirin notice to theC)0E3EC for appearances or uestins of candidates in bona fide news broadcasts.It points out that the fact that notice may be iven $& hours after first broadcast onlyproves that the mechanism is for monitorin purposes only, not for censorship.:urther, respondent arues, that for there to be prior restraint, official overnmentalrestrictions on the press or other forms of expression must be done in advance of actual publication or dissemination. 0oreover, petitioners are only re8uired to informthe C)0E3EC of candidatesJDpartiesJ uestins, but there is no reulation as to thecontent of the news or the expressions in news interviews or news documentaries.=espondent then emphasied that the -upreme Court has held that freedom of speech and the press may be limited in liht of the duty of the C)0E3EC to ensuree8ual access to opportunities for public service.

!ith reard to the riht to reply provision, respondent also does not consider it asrestrictive of the airin of bona fide news broadcasts. 0ore importantly, it stressed,the riht to reply is enshrined in the Constitution, and the assailed =esolutionsprovide that said riht can only be had after oin throuh administrative dueprocess. 'he provision was also merely lifted from -ection #( of =.A. No. ?((7,hence, petitioner ABC is actually attac"in the constitutionality of =.A. No. ?((7,which cannot be done throuh a collateral attac".

Next, respondent counters that there is no merit to ABCJs claim that the =esolutionsJdefinition of 5political advertisement5 or 5election propaanda5 suffers fromoverbreadth, as the extent or scope of what falls under said terms is clearly stated in-ection # 2&4 of =esolution No. ?7#+.

It is also respondentJs view that the nationwide areate total airtime does not

violate the e8ual protection clause, because it does not ma"e any substantialdistinctions between national and reional andDor local broadcast stations, and even

without the areate total airtime rule, candidates and parties are li"ely to be moreinclined to advertise in national broadcast stations. =espondent li"ewise sees nomerit in petitionersJ claim that the =esolutions amount to ta"in of private propertywithout just compensation. =espondent emphasies that radio and televisionbroadcastin companies do not own the airwaves and fre8uencies throuh which theytransmit broadcast sinalsL they are merely iven the temporary privilee to use thesame. -ince they are merely enjoyin a privilee, the same may be reasonablyburdened with some form of public service, in this case, to provide candidates withthe opportunity to reply to chares aired aainst them.

3astly, respondent contends that the public consultation re8uirement does not applyto constitutional commissions such as the C)0E3EC, pursuant to -ection #, Chapter I, Boo" II of the Administrative Code of #?;9. Indeed, -ection ?, Chapter II, Boo" I Iof said Code provides, thus

-ection ?. ublic articipation. 1 2#4 If not otherwise re8uired by law, anaency shall, as far as practicable, publish or circulate notices of proposedrules and afford interested parties the opportunity to submit their views prior to the adoption of any rule.

>owever, -ection #, Chapter #, Boo" II of said Code clearly provides

-ection #. -cope. 1'his Boo" shall be applicable to all aencies as defined inthe next succeedin section, except the Conress, the *udiciary, the

Constitutional Commissions, military establishments in all matters relatinexclusively to Armed :orces personnel, the Board of ardons and arole,and state universities and collees.

Nevertheless, even if public participation is not re8uired, respondent still conducted ameetin with representatives of the FB and various media outfits on <ecember $7,$(#$, almost a month before the issuance of =esolution No. ?7#+.

)n April $, $(#%, petitioner /0A filed its =eply,#& where it advanced the followincounter1aruments

Accordin to /0A, a petition for certiorari is the proper remedy to 8uestion the hereinassailed =esolutions, which should be considered as a 5decision, order or rulin of the Commission5 as mentioned in -ection #, =ule %9 of the C)0E3EC =ules of

rocedure which provides

-ection #. etition for Certiorari,U and 'ime to :ile. 1 nless otherwiseprovided by law, or by any specific provisions in these =ules, any decision,order or rulin of the Commission may be brouht to the -upreme Court oncertiorari by the arieved party within thirty 2%(4 days from its promulation.

/0A further stressed that this case involves national interest, and the urency of thematter justifies its resort to the remedy of a petition for certiorari.

'herefore, /0A disarees with the C)0E3ECJs position that the proper remedy is apetition for declaratory relief because such action only as"s the court to ma"e aproper interpretation of the rihts of parties under a statute or reulation. -uch apetition does not nullify the assailed statute or reulation, or rant injunctive relief,

which petitioners are prayin for in their petition. 'hus, /0A maintains that a petitionfor certiorari is the proper remedy.



/0A further denies that it is ma"in a collateral attac" on the :air Election Act, as it isnot attac"in said law. /0A points out that it has stated in its petition that the law infact allows the sale or donation of airtime for political advertisements and does notimpose criminal liability aainst radio and television stations. !hat it is assailin is theC)0E3ECJs erroneous interpretation of the lawJs provisions by declarin such saleandDor donation of airtime unlawful, which is contrary to the purpose of the :air Election Act.

/0A then claims that it has leal standin to brin the present suit because

x x x :irst, it has personally suffered a threatened injury in the form of ris" of criminal liability because of the alleed unconstitutional and unlawful conductof respondent C)0E3EC in expandin what was provided for in =.A. No.?((7. -econd, the injury is traceable to the challened action of respondentC)0E3EC, that is, the issuance of the assailed =esolutions. 'hird, the injuryis li"ely to be redressed by the remedy souht in petitioner /0AJs etition,amon others, for the >onorable Court to nullify the challened pertinentprovisions of the assailed =esolutions.#+

)n substantive issues, /0A first arues that the 8uestioned =esolutions are contraryto the objective and purpose of the :air Election Act. It points out that the :air Election Act even repealed the political ad ban found in the earlier law, =.A. No. 77&7. 'he:air Election Act also spea"s of 5e8ual opportunity5 and 5e8ual access,JJ but said lawnever mentioned e8ualiin the economic station of the rich and the poor, as a

declared policy. :urthermore, in its opinion, the supposed correlation betweencandidatesJ expenditures for ' ads and actually winnin the elections, is a mereillusion, as there are other various factors responsible for a candidateJs winnin theelection. /0A then cites portions of the deliberations of the Bicameral ConferenceCommittee on the bills that led to the enactment of the :air Election Act, and alleesthat this shows the leislative intent that airtime allocation should be on a 5per station5basis. 'hus, /0A claims it was arbitrary and a rave abuse of discretion for theC)0E3EC to issue the present =esolutions imposin airtime limitations on an5areate total5 basis.

It is li"ewise insisted by /0A that the assailed =esolutions impose an unconstitutionalburden on them, because their failure to strictly monitor the duration of total airtimethat each candidate has purchased even from other stations would expose their officials to criminal liability and ris" losin the stationJs ood reputation and oodwill,as well as its franchise. It arues that the wordins of the =esolutions belie theC)0E3ECJs claim that petitioners would only incur liability if they 5"nowinly5 sellairtime beyond the limits imposed by the =esolutions, because the element of "nowlede is clearly absent from the provisions thereof. 'his ma"es the provisionshave the nature of malum prohibitum.

Next, /0A also says that the application of the areate airtime limit constitutesprior restraint and is unconstitutional, opinin that 5@the reviewin power of respondent C)0E3EC and its sole judment of a news event as a politicaladvertisement are so pervasive under the assailed =esolutions, and provo"e thedistastes or chillin effect of prior restraint5#7 as even a leitimate exercise of aconstitutional riht miht expose it to leal sanction. 'hus, the overnmental interestof levelin the playin field between rich and poor candidates cannot justify the

restriction on the freedoms of expression, speech and of the press.

)n the issue of lac" of prior public participation, /0A cites -ection ;$ of the )mnibusElection Code, pertinent portions of which provide, thus

-ection ;$. 3awful election propaanda. 1 3awful election propaanda shallinclude

x x x x

All other forms of election propaanda not prohibited by this Code as theCommission may authorie after due notice to all interested parties andhearin where all the interested parties were iven an e8ual opportunity tobe heard rovided, 'hat the CommissionJs authoriation shall be publishedin two newspapers of eneral circulation throuhout the nation for at leasttwice within one wee" after the authoriation has been ranted.

'here havin been no prior public consultation held, /0A contends that theC)0E3EC is uilty of deprivin petitioners of its riht to due process of law.

/0A then concludes that it is also entitled to a temporary restrainin order, becausethe implementation of the =esolutions in 8uestion will cause rave and irreparabledamae to it by disruptin and emasculatin its mandate to provide television andradio services to the public, and by exposin it to the ris" of incurrin criminal andadministrative liability by re8uirin it to perform the impossible tas" of surveillance andmonitorin, or the broadcasts of other radio and television stations.

'hereafter, on April &, $(#%, the C)0E3EC, throuh the )ffice of the -olicitor /eneral 2)-/4, filed a -upplemental Comment and )pposition#9 where it further expounded on the leislative intent behind the :air Election Act, also 8uotin portionsof the deliberations of the Bicameral Conference Committee, alleedly adoptin the-enate Bill version settin the computation of airtime limits on a per candidate, notper station, basis. 'hus, as enacted into law, the wordins of -ection 7 of the :air Election Act shows that the airtime limit is imposed on a per candidate basis, rather than on a per station basis. :urthermore, the C)0E3EC states that petitioner intervenor -enator Cayetano is wron in aruin that there should be empirical datato support the need to chane the computation of airtime limits from a per stationbasis to a per candidate basis, because nothin in law obliates the C)0E3EC tosupport its =esolutions with empirical data, as said airtime limit was a policy decisiondictated by the leislature itself, which had the necessary empirical and other data

upon which to base said policy decision.

'he C)0E3EC then points out that -ection $ 294, #; Article IT 2C4 of the Constitutionempowers it to recommend to Conress effective measures to minimie electionspendin and in furtherance of such constitutional power, the C)0E3EC issued the8uestioned =esolutions, in faithful implementation of the leislative intent andobjectives of the :air Election Act.

'he C)0E3EC also dismisses -enator CayetanoJs fears that unauthoried or inadvertent inclusion of his name, initial, imae, brand, loo, insinia andDor symbol intandem advertisements will be chared aainst his airtime limits by pointin out thatwhat will be counted aainst a candidateJs airtime and expenditures are thoseadvertisements that have been paid for or donated to them to which the candidatehas iven consent.



!ith reard to the attac" that the total areate airtime limit constitutes prior restraint or undue abridement of the freedom of speech and expression, theC)0E3EC counters that 5the =esolutions enjoy constitutional and conressionalimprimatur. It is the Constitution itself that imposes the restriction on the freedoms of speech and expression, durin election period, to promote an important andsinificant overnmental interest, which is to e8ualie, as far as practicable, thesituation of rich and poor candidates by preventin the former from enjoyin theundue advantae offered by hue campain Jwar chests.5J#?

3astly, the C)0E3EC also emphasies that there is no impairment of the peopleJs

riht to information on matters of public concern, because in this case, the C)0E3ECis not withholdin access to any public record.

)n April #7, $(#%, this Court issued a 'emporary =estrainin )rder $( 2'=)4 in view of the urency involved and to prevent irreparable injury that may be caused to thepetitioners if respondent C)0E3EC is not enjoined from implementin =esolution No.?7#+.

)n April #?, $(#% respondent filed an rent 0otion to 3ift 'emporary =estrainin)rder and 0otion for Early =esolution of the Consolidated etitions.$#

)n 0ay ;, $(#%, petitioners AB-1CBN and the FB filed its )ppositionDComment $$ tothe said 0otion. Not lon after, ABC followed suit and filed its own )pposition to the0otion$% filed by the respondent.

In the interim, respondent filed a -econd -upplemental Comment and )pposition $&

dated April ;, $(#%.

In the -econd -upplemental Comment and )pposition, respondent delved on pointswhich were not previously discussed in its earlier Comment and -upplementalComment, particularly those raised in the petition filed by petitioner AB-1CBN andFB.

=espondent maintains that certiorari in not the proper remedy to 8uestion theConstitutionality of the assailed =esolutions and that petitioners AB-1CBN and FBhave no locus standi to file the present petition.

=espondent posits that contrary to the contention of petitioners, the leislative historyof =.A. No. ?((7 conclusively shows that conress intended the airtime limits to becomputed on a 5per candidate5 and not on a 5per station5 basis. In addition, the lealduty of monitorin lies with the C)0E3EC. Broadcast stations are merely re8uired tosubmit certain documents to aid the C)0E3EC in ensurin that candidates are notsold airtime in excess of the allowed limits.

Also, as discussed in the earlier Comment, the prior notice re8uirement is amechanism desined to inform the C)0E3EC of the appearances or uestin of candidates in bona fide news broadcasts. It is for monitorin purposes only, notcensorship. It does not control the subject matter of news broadcasts in anyway.Neither does it prevent media outlets from coverin candidates in news interviews,news events, and news documentaries, nor prevent the candidates from appearinthereon.

As for the riht to reply, respondent insists that the riht to reply provision cannot beconsidered a prior restraint on the freedoms of expression, speech and the press, as

it does not in any way restrict the airin of bona fide new broadcasts. 0edia entitiesare free to report any news event, even if it should turn out to be unfavourable to acandidate or party. 'he assailed =esolutions merely ive the candidate or party theriht to reply to such chares published or aired aainst them in news broadcasts.

0oreover, respondent contends that the imposition of the penalty of suspension andrevocation of franchise or permit for the sale or donation of airtime beyond theallowable limits is sanctioned by the )mnibus Election Code.

0eanwhile, =0N filed its etition on April ;, $(#%. )n *une &, $(#%, the Court issued

a =esolution$+

consolidatin the case with the rest of the petitions and re8uirinrespondent to comment thereon.

)n )ctober #(, $(#%, respondent filed its 'hird -upplemental Comment and)pposition.$7 'herein, respondent stated that the petition filed by =0N repeats theissues that were raised in the previous petitions. =espondent, li"ewise, reiterated itsaruments that certiorari in not the proper remedy to 8uestion the assailed resolutionsand that =0N has no locus standi to file the present petition. =espondent maintainsthat the aruments raised by =0N, li"e those raised by the other petitioners arewithout merit and that =0N is not entitled to the injunctive relief souht.

'he petition is partly meritorious.

At the outset, althouh the subject of the present petit#(ns are =esolutions

promulated by the C)0E3EC relative to the conduct of the $(#% national and localelections, nevertheless the issues raised by the petitioners have not been renderedmoot and academic by the conclusion of the $(#% elections. Considerin that thematters elevated to the Court for resolution are susceptible to repetition in the conductof future electoral exercises, these issues will be resolved in the present action.

ROCE*RAL ASEC/S

0atters of procedure and technicalities normally ta"e a bac"seat when issues of substantial and transcendental importance are presented before the Court. -o theCourt does aain in this particular case.

ro'er Re+ey

=espondent claims that certiorari and prohibition are not the proper remedies that

petitioners have ta"en to 8uestion the assailed =esolutions of the C)0E3EC.'echnically, respondent may have a point. >owever, considerin the very importantand pivotal issues raised, and the limited time, such technicality should not deter theCourt from havin to ma"e the final and definitive pronouncement that everyone elsedepends for enlihtenment and uidance. 5@'his Court has in the past seen fit to stepin and resolve petitions despite their bein the subject of an improper remedy, in viewof the public importance of the tile issues raised therein.$9

It has been in the past, we do so aain.

Lo&u% S(a#"

Every time a constitutional issue is brouht before the Court, the issue of locus standiis raised to 8uestion the personality of the parties invo"in the CourtJs jurisdiction.

'he Court has routinely made reference to a liberalied stance when it comes to



petitions raisin issues of transcendental importance to the country. Invariably, after some discussions, the Court would eventually rant standin.$;

In this particular case, respondent also 8uestions the standin of the petitioners. !erule for the petitioners. :or petitioner1intervenor -enator Cayetano, he undoubtedlyhas standin since he is a candidate whose ability to reach out to the electorate isimpacted by the assailed =esolutions.

:or the broadcast companies, they similarly have the standin in view of the directinjury they may suffer relative to their ability to carry out their tas"s of disseminatin

information because of the burdens imposed on them. Nevertheless, even in reardto the broadcast companies invo"in the injury that may be caused to their customersor the public 1 those who buy advertisements and the people who rely on their broadcasts 1 what the Court said in !hite 3iht Corporation v. City of 0anila$? maydispose of the 8uestion. In that case, there was an issue as to whether owners of establishments offerin 5wash1up5 rates may have the re8uisite standin on behalf of their patronsJ e8ual protection claims relative to an ordinance of the City of 0anilawhich prohibited 5short1time5 or 5wash1up5 accommodation in motels and similar establishments. 'he Court essentially condensed the issue in this manner 5@'he cruxof the matter is whether or not these establishments have the re8uisite standin toplead for protection of their patronsJ e8ual protection rihts.5%( 'he Court then went onto hold

-tandin or locus standi is the ability of a party to demonstrate to the court

sufficient connection to and harm from the law or action challened tosupport that partyJs participation in the case. 0ore importantly, the doctrineof standin is built on the principle of separation of powers, sparin as itdoes unnecessary interference or invalidation by the judicial branch of theactions rendered by its co1e8ual branches of overnment.

'he re8uirement of standin is a core component of the judicial systemderived directly from the Constitution. 'he constitutional component of standin doctrine incorporates concepts which concededly are notsusceptible of precise definition. In this jurisdiction, the extancy of 5a directand personal interest5 presents the most obvious cause, as well as thestandard test for a petitionerJs standin. In a similar vein, the nited -tates-upreme Court reviewed and elaborated on the meanin of the threeconstitutional standin re8uirements of injury, causation, and redressability in Allen v. !riht.

Nonetheless, the eneral rules on standin admit of several exceptions suchas the overbreadth doctrine, taxpayer suits, third party standin and,especially in the hilippines, the doctrine of transcendental importance.

:or this particular set of facts, the concept of third party standin as anexception and the overbreadth doctrine are appropriate. x x x

x x x x

American jurisprudence is replete with examples where parties1ininterestwere allowed standin to advocate or invo"e the fundamental due processor e8ual protection claims of other persons or classes of persons injured by

state action. x x x

x x x x

Assumin aruendo that petitioners do not have a relationship with their patrons for the former to assert the rihts of the latter, the overbreadthdoctrine comes into play. In overbreadth analysis, challeners to overnmentaction are in effect permitted to raise the rihts of third parties. /enerallyapplied to statutes infrinin on the freedom of speech, the overbreadthdoctrine applies when a statute needlessly restrains even constitutionallyuaranteed rihts. In this case, the petitioners claim that the )rdinancema"es a sweepin intrusion into the riht to liberty of their clients. !e can

see that based on the alleations in the petition, the )rdinance suffers fromoverbreadth.

!e thus reconie that the petitioners have a riht to assert theconstitutional rihts of their clients to patronie their establishments for a5wash1rate5 time frame.%#

If in reard to commercial underta"ins, the owners may have the riht to assert aconstitutional riht of their clients, with more reason should establishments whichpublish and broadcast have the standin to assert the constitutional freedom of speech of candidates and of the riht to information of the public, not to spea" of their own freedom of the press. -o, we uphold the standin of petitioners on that basis.

SS/AN/IVE ASEC/S

A99re9a(e /"+e L"+"(%

C)0E3EC =esolution No. ?7#+ introduced a radical departure from the previousC)0E3EC resolutions relative to the airtime limitations on political advertisements.'his essentially consists in computin the airtime on an a99re9a(e basis involvin allthe media of broadcast communications compared to the past where it was done on a'er %(a("o# basis. 'hus, it becomes immediately obvious that there was effected adrastic reduction of the allowable minutes within which candidates and political partieswould be able to campain throuh the air. 'he 8uestion is accordinly whether this iswithin the power of the C)0E3EC to do or not. 'he Court holds that it is not withinthe power of the C)0E3EC to do so.

a. a%( ee&("o#% a# a"r("+e "+"(%

'he authority of the C)0E3EC to impose airtime limits directly flows from the :air Election Act 2=.A. No. ?((7 @$((#4%$ 1 one hundred 2#$(4 minutes of televisionadvertisement and one1hundredU eihty 2#;(4 minutes for radio advertisement. :or the $((& elections, the respondent C)0E3EC promulated =esolution No. 7+$( %%

implementin the airtime limits by applyin said limitation on a 'er %(a("o# basis.%&

-uch manner of determinin airtime limits was li"ewise adopted for the $((9elections, throuh =esolution No. 9979.%+ In the $(#( elections, under =esolution No.;9+;,%7 the same was aain adopted. But for the $(#% elections, the C)0E3EC,throuh =esolution No. ?7#+, as amended by =esolution No. ?7%#, chose toa99re9a(e the total broadcast time amon the different broadcast media, thus

-ection ?. =e8uirements andDor 3imitations on the se of Electionropaanda throuh 0ass 0edia. 1 All parties and bona fide candidates

shall have e8ual access to media time and space for their election



propaanda durin the campain period subject to the followinre8uirements andDor limitations

a. Broadcast Election ropaanda

'he duration of an air time that a candidate, or party may use for their broadcast advertisements or election propaanda shall be, as follows

:orCandidatesD=eisteredolitical parties for aNational Electiveosition

Not more than an areate total of onehundred 2#$(4 minutes of television advertisin,whether appearin on national, reional, or local, free or cable television, and one hundredeihty 2#;(4 minutes of radio advertisin,whether airin on national, reional, or localradio, whether by purchase or donation

:orCandidatesD=eisteredolitical parties for a

3ocal Elective osition

Not more than an areate total of sixty 27(4minutes of television advertisin, whether appearin on national, reional, or local, free or

cable television, and ninety 2?(4 minutes of radio advertisin, whether airin on national,reional, or local radio, whether by purchase or donation.

In cases where two or more candidates or parties whose names, initials,imaes, brands, loos, insinias, color motifs, symbols, or forms of raphicalrepresentations are displayed, exhibited, used, or mentioned toether in thebroadcast election propaanda or advertisements, the lenth of time durinwhich they appear or are bein mentioned or promoted will be countedaainst the airtime limits allotted for the said candidates or parties and thecost of the said advertisement will li"ewise be considered as their expenditures, reardless of whoever paid for the advertisements or to whomthe said advertisements were donated.

x x x x%9

Corollarily, petitioner1intervenor, -enator Cayetano, allees

7.#+. 'he chane in the implementation of -ection 7 of =.A. ?((7 wasunderta"en by respondent Comelec without consultation with the candidatesfor the $(#% elections, affected parties such as media oraniations, as wellas the eneral public. !orse, said chane was put into effect withoutexplainin the basis therefor and without showin any data in support of such chane. =espondent Comelec merely maintained that such action 5ismeant to level the "laying field +et*een the moneyed candidates and those

*ho dont have enough resources,5 without particulariin the empirical data

upon which such a sweepin statement was based. 'his was evident in thepublic hearin held on %# *anuary $(#% where petitioner /0A, thru counsel,explained that no empirical data on he excesses or abuses of broadcastmedia were brouht to the attention of the public by respondent Comelec, or even stated in the Comelec =esolution No. ?7#+. 'hus M

x x x x

Chairman Brillantes

-o if we can reulate and amplify, we may amplify meanin we can expand if we want to. But the authority of the Commission is if we do not want toamplify and we thin" that the #$( or #;( is o"ay we cannot be compelled toamplify. !e thin" that #$( or #;( is o"ay, is enouh.

Atty. Lucila

But with due respect Pour >onor, I thin" the basis of the resolution is found inthe law and the law has been enterpreted 2sic4 before in $(#( to be #$( per station, so why the chane, your >onorS

Chairman Brillantes

No, the chane is not there, the riht to amplify is with the Commission onElections. Nobody can encroach in our riht to amplify. Now, if in $(#( the

Commission felt that per station or per networ" is the rule then that is thepreroative of the Commission then they could amplify it to expand it. If thecurrent Commission feels that #$( is enouh for the particular medium li"e' and #;( for radio, that is our preroative. >ow can you encroach andwhat is unconstitutional about itS

Atty. Lucila

!e are not 8uestionin the authority of the >onorable Commission toreulate Pour >onor, we are just raisin our concern on the manner of reulation because as it is riht now, there is a chanin mode or sentimentsof the Commission and the public has the riht to "now, was there rampantoverspendin on political ads in $(#(, we were not informed Pour >onor.!as there abuse of the media in $(#(, we were not informed Pour >onor. -o

we would li"e to "now what is the basis of the sudden chane in thislimitation, our Ho#or .. A# a7 +u%( $a;e a &o#%"%(e#( "#(er're(a("o#($a( ="%>our 'o%"("o#, our Ho#or.

Chairman Brillantes

But my initial interpretation, this is personal to this representation counsel, isthat if the Constitution allows us to reulate and then it ives us thepreroative to amplify then the preroative to amplify you should leave thisto the discretion of the Commission. !hich means if previous Commissionsfelt that expandin it should be part of our authority that was a valid exerciseif we reduce it to what is provided for by law which is #$(1#;( per medium,', radio, that is also within the law and that is still within our preroative asprovided for by the Constitution. If you say we have to expose thecandidates to the public then I thin" the reaction should come, the neative



reaction should come from the candidates not from the media, unless youhave some interest to protect directly. Is there any interest on the part of themedia to expand itS

Atty. Lucila

!ell, our interest Pour >onor is to participate in this election Pour >onor andwe have been constantly 2sic4 as the resolution says and even in the partinvolved because you will be ettin some affirmative action time cominfrom the media itself and Comelec time comin from the media itself. -o we

could li"e to be both involved in the whole process of the exercise of thefreedom of suffrae Pour >onor.

Chairman Brillantes

Pes, but the very essence of the Constitutional provision as well as theprovision of ?((7 is actually to level the playin field. 'hat should be theparamount consideration. If we allow everybody to ma"e use of all their timeand all radio time and ' time then there will be practically unlimited use of the mass media ....

Atty. Lucila

!as there in $(#( Pour >onor, was there any data to support that there wasan unlimited and abuse of a 2sic4 political ads in the mass media thatbecame the basis of this chane in interpretation Pour >onorS !e would li"eto "now about it Pour >onor.

Chairman Brillantes

!hat do you thin" there was no abuse in $(#(S

Atty. Lucila

As far as the networ" is concern, there was none Pour >onor.

Chairman Brillantes

'here was none ..... .

Atty. Lucila

IJm sorry, Pour >onor ...

Chairman Brillantes

Pes, there was no abuse, o"ay, but there 7a% some advantae iven tothose who too" ... who had the more moneyed candidates too" advantae of it.

Atty. Lucila

But that is the fact in life, Pour >onor there are poor candidates, there arerich candidates. No amount of law or reulation can even level the playin

filed 2sic4 as far as the economic station in life of the candidates are concern2sic4 our >onor.%;

/iven the foreoin observations about what happened durin the hearin,etitioner1Intervenor went on to allee that

7.#7. !ithout any empirical data upon which to base the reulatorymeasures in -ection ? 2a4, respondent Comelec arb"(rar"y &$a#9e ($erue )ro+ 'er %(a("o# ba%"% (o a99re9a(e a"r("+e ba%"%. Indeed, nocredence should be iven to the cliched explanation of respondent Comelec2i.e. levelin the playin field4 in its published statements which in itself is amere reiteration of the rationale for the enactment of the political ad ban of =epublic Act No. 77&7, and which has li"ewise been foisted when said

political ad ban was lifted by =.A. ?((7.%?

:rom the foreoin, it does appear that the C)0E3EC did not have any other basisfor comin up with a new manner of determinin allowable time limits except its ownidea as to what should be the maximum number of minutes based on its exercise of discretion as to how to level the playin field. 'he same could be encapsulied in theremar" of the C)0E3EC Chairman that 5if the Constitution allows us to reulate andthen it ives us ($e 'rero9a(";e (o a+'")y ($e# ($e 'rero9a(";e (o a+'")y youshould leave this to the discretion of the Commission.5&(

'he Court could not aree with what appears as a nonchalant exercise of discretion,as expounded anon.

b. CO!ELEC "% u(y bou# (o &o+e u'

7"($ rea%o#abe ba%"% )or &$a#9"#9 ($e"#(er're(a("o# a# "+'e+e#(a("o# o) ($ea"r("+e "+"(%

'here is no 8uestion that the C)0E3EC is the office constitutionally and statutorilyauthoried to enforce election laws but it cannot exercise its powers withoutlimitations 1 or reasonable basis. It could not simply adopt measures or reulations just because it feels that it is the riht thin to do, in so far as it miht be concerned. Itdoes have discretion, but such discretion is somethin that must be exercised withinthe bounds and intent of the law. 'he C)0E3EC is not free to simply chane therules especially if it has consistently interpreted a leal provision in a particular manner in the past. If ever it has to chane the rules, the same must be properlyexplained with sufficient basis.

Based on the transcripts of the hearin conducted by the C)0E3EC after it hadalready promulated the =esolution, the respondent did not fully explain or justify thechane in computin the airtime allowed candidates and political parties, except toma"e reference to the need to 5level the playin field.5 If the 5per station5 basis wasdeemed enouh to comply with that objective in the past, why should it now besuddenly inade8uateS And, the short answer to that from the respondent, in a manner which smac"s of overbearin exercise of discretion, is that it is within the discretion of the C)0E3EC. As 8uoted in the transcript, 5the riht to amplify is with theC)0E3EC. Nobody can encroach in our riht to amplify. Now, if in $(#( theCommission felt that per station or per networ" is the rule then that is the preroativeof the Commission then they could amplify it to expand it. If the current Commissionfeels that #$( is enouh for the particular medium li"e ' and #;( for radio, that isour preroative. >ow can you encroach and what is unconstitutional about itS5&#



'here is somethin basically wron with that manner of explainin chanes inadministrative rules. :or one, it does not really provide a ood basis for chane. :or another, those affected by such rules must be iven a better explanation why theprevious rules are no loner ood enouh. As the Court has said in one case

!hile stability in the law, particularly in the business field, is desirable, thereis no demand that the N'C slavishly follow precedent. 7o*ever# *e thin% it essential# for the sa%e of clarity and intellectual honesty# that if anadministrative agency decides inconsistently *ith "revious action# that it ex"lain thoroughly *hy a different result is *arranted# or f need +e# *hy the

"revious standards should no longer a""ly or should +e overturned. Suchex"lanation is *arranted in order to sufficiently esta+lish a decision ashaving rational +asis. Any inconsistent decision lac%ing thorough#ratiocination in su""ort may +e struc% do*n as +eing ar+itrary. And any decision *ith a+solutely nothing to su""ort it is a nullity .&$

!hat the C)0E3EC came up with does not measure up to that level of re8uirementand accountability which elevates administrative rules to the level of respectabilityand acceptability. 'hose overned by administrative reulations are entitled to areasonable and rational basis for any chanes in those rules by which they aresupposed to live by, especially if there is a radical departure from the previous ones.

&. /$e CO!ELEC 7e#( beyo# ($eau($or"(y 9ra#(e "( by ($e a7 "#

ao'("#9 Da99re9a(eD ba%"% "# ($ee(er+"#a("o# o) ao7abe a"r("+e

'he law, which is the basis of the reulation subject of these petitions, pertinentlyprovides

7.$. 2a4 Each bona fide candidate or reistered political party for a nationallyelective office shall be entitled to not more than one hundred twenty 2#$(4minutes of television advertisement and one hundred eihty 2#;(4 minutes of radio advertisement whether by purchase or donation.

2b4 Each bona fide candidate or reistered political party for a locally electiveoffice shall be entitled to not more than sixty 27(4 minutes of televisionadvertisement and ninety 2?(4 minutes of radio advertisement whether by

purchase or donationL x x x

'he law, on its face, does not justify a conclusion that the maximum allowable airtimeshould be based on the totality of possible broadcast in all television or radio stations.-enator Cayetano has called our attention to the leislative intent relative to theairtime allowed 1 that it should be on a 5per station5 basis.&%

'his is further buttressed by the fact that the :air Election Act 2=.A. No. ?((74 actuallyrepealed the previous provision, -ection ll2b4 of =epublic Act No. 77&7,&& whichprohibited direct political advertisements 1the so1called 5political ad ban.5 If under theprevious law, no candidate was allowed to directly buy or procure on his own hisbroadcast or print campain advertisements, and that he must et it throuh theC)0E3EC 'ime or C)0E3EC -pace, =.A. No. ?((7 relieved him or her from thatrestriction and allowed him or her to broadcast time or print space subject to the

limitations set out in the law. Conress, in enactin =.A. No. ?((7, felt that the

previous law was not an effective and efficient way of ivin voice to the people.Notin the debilitatin effects of the previous law on the riht of suffrae andhilippine democracy, Conress decided to repeal such rule by enactin the :air Election Act.

In reard to the enactment of the new law, ta"en in the context of the restrictive natureof the previous law, the sponsorship speech of -enator =aul =oco is enlihtenin

'he bill see"s to repeal -ection ;+ of the )mnibus Election Code and-ections #( and ## of =A 77&7. In view of the importance of their appeal in

connection with the thrusts of the bill, I hereby 8uote these sections in full5-EC. ;+. rohibited forms of election propaanda. 1 It shall be unlawful

52a4 'o print, publish, post or distribute any poster, pamphlet, circular,handbill, or printed matter urin voters to vote for or aainst any candidateunless they hear the names and addresses of the printed and payor asre8uired in -ection ;& hereofL

52b4 'o erect, put up, ma"e use of, attach, float or display any billboard,tinplate1poster, balloons and the li"e, of whatever sie, shape, form or "ind,advertisin for or aainst any candidate or political partyL

52c4 'o purchase, manufacture, re8uest, distribute or accept electoralpropaanda adets, such as pens, lihters, fans of whatever nature,flashlihts, athletic oods or materials, wallets, shirts, hats, bandannas,matches, ciarettes and the li"e, except that campain supportersaccompanyin a candidate shall be allowed to wear hats andDor shirts or '1shirts advertisin a candidateL

52d4 'o show or display publicly any advertisement or propaanda for or aainst any candidate by means of cinematoraphy, audio1visual units or other screen projections except telecasts which may be allowed ashereinafter providedL and

52e4 :or any radio broadcastin or television station to sell or ive free of chare airtime for campain and other political purposes except asauthoried in this Code under the rules and reulations promulated by theCommission pursuant theretoL

5Any prohibited election propaanda adet or advertisement shall bestopped, confiscated or tom down by the representative of the Commissionupon specific authority of the Commission.5

5-EC. #(. Common oster Areas. 1 'he Commission shall desinatecommon poster areas in strateic public places such as mar"ets, baranaycenters and the li"e wherein candidates can post, display or exhibit electionpropaanda to announce or further their candidacy.

5!henever feasible, common billboards may be installed by the CommissionandDor non1partisan private or civic oraniations which the Commissionmay authorie whenever available, after due notice and hearin, in strateicareas where it may readily be seen or read, with the heaviest pedestrian

andDor vehicular traffic in the city or municipality.



'he space in such common poster areas or billboards shall be allocated freeof chare, if feasible, e8uitably and impartially amon the candidates in theprovince, city or municipality.

5-EC. ##. rohibite,d :orms of Election ropaanda. 1 In addition to theforms of election propaanda prohibited under -ection ;+ of Batasambansa Bl. ;;#, it shall be unlawful 2a4 to draw, paint, inscribe, write,post, display or puolicly exhibit any election propaanda in any place,whether private or public, except in common poster areas andDor billboardsprovided in the immediately precedin section, at the candidateJs own

residence, or at the campain head8uarters of the candidate or politicalparty rovided, 'hat such posters or election propaanda shall in no caseexceed two 2$4 feet by three 2%4 feet in areaL rovided, further, 'hat at thesite of and on the occasion of a public meetin or rally, streamers, not morethan two 2$4 feet and not exceedin three 2%4 feet by eiht 2;4 each may bedisplayed five 2+4 days before the date of the meetin or rally, and shall beremoved within twenty1four 2$&4 hours after said meetin or rallyL and

52b4 :or any newspapers, radio broadcastin or television station, or other mass media, or any person ma"in use of the mass media to sell or ive for free of chare print space or air time for campain or other political purposesexcept to the Commission as provided under -ection ?( and ?$ of Batasambansa Bi. ;;#. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall ta"e a leave

of absence from his wor" as such durin the campain.5

'he repeal of the provision on the Common oster Area implements thestron recommendations of the Commission on Elections durin thehearins. It also see"s to apply the doctrine enunciated by the -upremeCourt in the case of Blo mpar Adion vs. Commission on Elections, $(9-C=A 9#$, %# 0arch #??$. >ere a unanimous -upreme Court ruled 'heC)0E3ECJs prohibition on the postin of decals and stic"ers on 5mobile5places whether public or private except @in desinated areas provided for bythe C)0E3EC itself is null and void on constitutional rounds.

:or the foreoin reasons, we commend to our colleaues the earlypassae of -enate Bill No. #9&$. In so doin, we move one step towardsfurther ensurin 5free, orderly, honest, peaceful and credible elections5 asmandated by the Constitution.&+

/iven the foreoin bac"round, it is therefore ineluctable to conclude that Conressintended to provide a more expansive and liberal means by which the candidates,political parties, citiens and other sta"e holders in the periodic electoral exercise maybe iven a chance to fully explain and expound on their candidacies and platforms of overnance, and for the electorate to be iven a chance to "now better thepersonalities behind the candidates. In this reard, the media is also iven a veryimportant part in that underta"in of providin the means by which the politicalexercise becomes an interactive process. All of these would be undermined andfrustrated with the "ind of reulation that the respondent came up with.

'he respondent ave its own understandin of the import of the leislativedeliberations on the adoption of =.A. No. ?((7 as follows

'he leislative history of =.A. ?((7 clearly shows that Conress intended toimpose the per candidate or political party areate total airtime limits onpolitical advertisements and election propaanda. 'his is evidenced by thedroppin of the 5per day per station5 lanuae embodied in both versions of the >ouse of =epresentatives and -enate bills in favour of the 5eachcandidate5 and 5not more than5 limitations now found in -ection 7 of =.A.?((7.

'he pertinent portions of >ouse Bill No. ?((( and -enate Bill No. #9&$ readas follows

7ouse Bill )o. D8

-EC. &. -ection ;7 of the same Batas is hereby amended to readas follows

-ec. ;7. /egulation of Election &ro"aganda 3hroughMass Media.

x x x x x x x x x

A4 /$e (o(a a"r("+e a;a"abe (o ($e &a#"a(e a#'o"("&a 'ar(y, whether by purchase or by donation, shallbe limited to five 2+4 minutes per day in ea&$ (ee;"%"o#,&abe (ee;"%"o# a# ra"o %(a("o#% durin the applicable

campain period.

Senate Bill )o. ?=FG8

-EC. +. E;ual Access to Media S"ace and 3ime. 1All reisteredparties and bona fide candidates shall have e8ual access to mediaspace and time. 'he followin uidelines may be amplified by theC)0E3EC.

x x x x x x x x x

$. /$e (o(a a"r("+e a;a"abe )or ea&$ re9"%(ere 'ar(y a#bo#a )"e &a#"a(e whether by purchase or donation shall notexceed a total of one 2#4 minute 'er ay 'er (ee;"%"o# or ra"o

%(a("o#. 2Emphasis supplied.4

As -ection 7 of =.A. ?((7 is presently worded, it can be clearly seen that theleislature intended the areate airtime limits to be computed on per candidate or party basis. )therwise, if the leislature intended thecomputation to be on per station basis, it could have left the oriinal 5per dayper station5 formulation.&7

'he Court does not aree. It cannot brin itself to read the chanes in the bill asdisclosin an intent that the C)0E3EC wants this Court to put on the final lanuaeof the law. If anythin, the chane in lanuae meant that the computation must notbe based on a 5per day5 basis for each television or radio station. 'he same could nottherefore lend itself to an understandin that the total allowable time is to be done onan areate basis for all television or radio stations. Clearly, the respondent in this

instance went beyond its leal mandate when it provided for rules beyond what was



contemplated by the law it is supposed to implement. As we held in 3a"in, *r. v.Commission on Elections&9

'he C)0E3EC, despite its role as the implementin arm of the /overnmentin the enforcement and administration of all laws and reulations relative tothe conduct of an election, has neither the authority nor the license toexpand, extend, or add anythin to the law it see"s to implement thereby.'he I==s the C)0E3EC issued for that purpose should always be in accordwith the law to be implemented, and should not override, supplant, or modifythe law. It is basic that the I==s should remain consistent with the law they

intend to carry out.

Indeed, administrative I==s adopted by a particular department of the/overnment under leislative authority must be in harmony with theprovisions of the law, and should be for the sole purpose of carryin thelawJs eneral provisions into effect. 'he law itself cannot be expanded bysuch I==s, because an administrative aency cannot amend an act of Conress.&;

In the case of 3a"in, *r., the C)0E3ECJs explanation that the =esolution then in8uestion did not add anythin but merely reworded and rephrased the statutoryprovision did not persuade the Court. !ith more reason here since the C)0E3ECnot only reworded or rephrased the statutory provision 1 it practically replaced it withits own idea of what the law should be, a matter that certainly is not within its

authority. As the Court said in illeas v. -ubido&?

)ne last word. Nothin is better settled in the law than that a public officialexercises power, not rihts. 'he overnment itself is merely an aencythrouh which the will of the state is expressed and enforced. Its officerstherefore are li"ewise aents entrusted with the responsibility of discharinits functions. As such there is no presumption that they are empowered toact. 'here must be a deleation of such authority, either express or implied.In the absence of a valid rant, they are devoid of power. !hat they dosuffers from a fatal infirmity. 'hat principle cannot be sufficiently stressed. Inthe appropriate lanuae of Chief *ustice >uhes 5It must be conceded thatdepartmental eal may not be permitted to outrun the authority conferred bystatute.5 Neither the hih dinity of the office nor the rihteousness of themotive then is an acceptable substitute. )therwise the rule of law becomes a

myth. -uch an eventuality, we must ta"e all pains to avoid.+(

-o it was then. -o does the rule still remains the same.

. Se&("o# a o) CO!ELEC Re%ou("o#No. 615 o# a"r("+e "+"(% a%o 9oe%a9a"#%( ($e &o#%("(u("o#a 9uara#(y o) )reeo+ o) e@'re%%"o#, o) %'ee&$ a# o) ($e 're%%

'he uaranty of freedom to spea" is useless without the ability to communicate anddisseminate what is said. And where there is a need to reach a lare audience, the

need to access the means and media for such dissemination becomes critical. 'his is

where the press and broadcast media come alon. At the same time, the riht tospea" and to reach out would not be meaninful if it is just a to"en ability to be heardby a few. It must be coupled with substantially reasonable means by which thecommunicator and the audience could effectively interact. -ection ? 2a4 of C)0E3EC=esolution No. ?7#+, with its adoption of the 5areate1based5 airtime limitsunreasonably restricts the uaranteed freedom of speech and of the press.

olitical speech is one of the most important expressions protected by the:undamental 3aw. 5@:reedom of speech, of expression, and of the press are at thecore of civil liberties and have to be protected at all costs for the sa"e of

democracy.5+#

Accordinly, the same must remain unfettered unless otherwise justified by a compellin state interest.

In reard to limitations on political speech relative to other state interests, an American case observed

A restriction on the amount of money a person or roup can spend onpolitical communication durin a campain necessarily reduces the 8uantityof expression by restrictin the number of issues discussed, the depth of their exploration, and the sie of the audience reached. 'his is becausevirtually every means of communicatin ideas in todayJs mass societyre8uires the expenditure of money. 'he distribution of the humblest handbillor leaflet entails printin, paper, and circulation costs. -peeches and ralliesenerally necessitate hirin a hall and publiciin the event. 'he electorateJs

increasin dependence on television, radio, and other mass media for newsand information has made these expensive modes of communicationindispensable instruments of effective political speech.

'he expenditure limitations contained in the Act represent substantial, rather than merely theoretical restraints on the 8uantity and diversity of politicalspeech. 'he Q#,((( ceilin on spendin 5relative to a clearly identifiedcandidate,5 #; .-.C. R 7(;2e42l4 2#?9( ed., -upp. I4, would appear toexclude all citiens and roups except candidates, political parties, and theinstitutional press from any sinificant use of the most effective modes of communication. Althouh the ActJs limitations on expenditures by campainoraniations and political parties provide substantially reater room for discussion and debate, they would have re8uired restrictions in the scope of a number of past conressional and residential campains and would

operate to constrain campainin by candidates who raise sums in excess of the spendin ceilin.+$

-ection ? 2a4 ofC)0E3EC =esolution No. ?7#+ comes up with what is challened asbein an unreasonable basis for determinin the allowable air time that candidatesand political parties may avail of. etitioner /0A came up with its analysis of thepractical effects of such a reulation

+.;. /iven the reduction of a candidateJs airtime minutes in the New =ules,petitioner /0A estimates that a national candidate will only have #$(minutes to utilie for his political advertisements in television durin thewhole campain period of ;; days, or will only have ;#.;# seconds per day' exposure allotment. If he chooses to place his political advertisements inthe % major ' networ"s in e8ual allocation, he will only have $9.$9 seconds



of airtime per networ" per day. 'his barely translates to # advertisement spoton a %(1second spot basis in television.

+.?. !ith a $(1hour prorammin per day and considerin the limits of astationJs coverae, it will be difficult for # advertisin spot to ma"e a sensibleand feasible communication to the public, or in political propaanda, to5ma"e "nown @a candidateJs 8ualifications and stand on public issues5.

+.#( If a candidate loads all of his ;#.;# seconds per day in one networ",this will translate to barely three %(1second advertisin spots in television on

a daily basis usin the same assumptions above.+.## Based on the data from the $(#$ Nielsen ' audience measurement in0ea 0anila, the commercial advertisements in television are viewed byonly %?.$V of the averae total day household audience if suchadvertisements are placed with petitioner /0A, the leadin televisionnetwor" nationwide and in 0ea 0anila. In effect, under the restrictiveareate airtime limits in the New =ules, the three %(1second politicaladvertisements of a candidate in petitioner /0A will only be communicatedto barely &(V of the viewin audience, not even the votin population, butonly in 0ea 0anila, which is defined by A/B Nielsen hilippines to cover 0etro 0anila and certain urban areas in the provinces of Bulacan, Cavite,3auna, =ial, Batanas and ampana. Conse8uently, iven the votinpopulation distribution and the drastically reduced supply of airtime as a

result of the New =ulesJ areate airtime limits, a national candidate will beforced to use all of his airtime for political advertisements in television only inurban areas such as 0ea 0anila as a political campain tool to achievemaximum exposure.

+.#$ 'o be sure, the people outside of 0ea 0anila or other urban areasdeserve to be informed of the candidates in the national elections, and thesaid candidates also enjoy the riht to be voted upon by these informedpopulace.+%

'he Court arees. 'he assailed rule on 5areate1based5 airtime limits isunreasonable and arbitrary as it unduly restricts and constrains the ability of candidates and political parties to reach out and communicate with the people. >ere,the adverted reason for imposin the 5areate1based5 airtime limits 1 levelin the

playin field 1 does not constitute a compellin state interest which would justify sucha substantial restriction on the freedom of candidates and political parties tocommunicate their ideas, philosophies, platforms and prorams of overnment. And,this is specially so in the absence of a clear1cut basis for the imposition of such aprohibitive measure. In this particular instance, what the C)0E3EC has done isanaloous to lettin a bird fly after one has clipped its wins.

It is also particularly unreasonable and whimsical to adopt the areate1based timelimits on broadcast time when we consider that the hilippines is not only composedof so many islands. 'here are also a lot of lanuaes and dialects spo"en amon thecitiens across the country. Accordinly, for a national candidate to really reach out toas many of the electorates as possible, then it miht also be necessary that heconveys his messae throuh his advertisements in lanuaes and dialects that thepeople may more readily understand and relate to. 'o add all of these airtimes indifferent dialects would reatly hamper the ability of such candidate to expresshimself 1 a form of suppression of his political speech.

=espondent itself states that 5@television is aruably the most costeffective medium of dissemination. Even a sliht increase in television exposure can sinificantly boost acandidateJs popularity, name recall and electability.5+& If that be so, then drasticallycurtailin the ability of a candidate to effectively reach out to the electorate wouldunjustifiably curtail his freedom to spea" as a means of connectin with the people.

:inally on this matter, it is pertinent to 8uote what *ustice Blac" wrote in hisconcurrin opinion in the landmar" entaon apers case 5In the :irst Amendment,the :oundin :athers ave the free press the protection it must have to fulfill itsessential role in our democracy. 'he press was to serve the overned, not theovernors. 'he /overnmentJs power to censor the press was abolished so that thepress would remain forever free to censure the /overnment. 'he press was protectedso that it could bare the secrets of overnment and inform the people. )nly a free andunrestrained press can effectively expose deception in overnment.5++

In the ultimate analysis, when the press is silenced, or otherwise muffled in itsunderta"in of actin as a soundin board, the people ultimately would be the victims.

e. Se&("o# a o) Re%ou("o# 615 "%;"oa(";e o) ($e 'eo'e% r"9$( (o %u))ra9e

:undamental to the idea of a democratic and republican state is the riht of thepeople to determine their own destiny throuh the choice of leaders they may have inovernment. 'hus, the primordial importance of suffrae and the concomitant riht of the people to be ade8uately informed for the intellient exercise of such birthriht. Itwas said that

x x x As lon as popular overnment is an end to be achieved and

safeuarded, suffrae, whatever may be the modality and form devised,must continue to be the means by which the reat reservoir of power mustbe emptied into the receptacular aencies wrouht by the people throuhtheir Constitution in the interest of ood overnment and the common weal.=epublicanism, in so far as it implies the adoption of a representative type of overnment, necessarily points to the enfranchised citien as a particle of popular sovereinty and as the ultimate source of the established authority.>e has a voice in his /overnment and whenever possible it is the solemnduty of the judiciary, when called upon to act in justifiable cases, to ive itefficacy and not to stifle or frustrate it. 'his, fundamentally, is the reason for the rule that ballots should be read and appreciated, if not with utmost, withreasonable, liberality. x x x+7 It has also been said that 5@ c ompetition inideas and overnmental policies is at the core of our electoral process andof the :irst Amendment freedoms.5+9 Candidates and political parties needade8uate breathin space 1 includin the means to disseminate their ideas.



'his could not be reasonably addressed by the very restrictive manner bywhich the respondent implemented the time limits in reard to politicaladvertisements in the broadcast media.

). Re%ou("o# No. 615 #ee% 'r"or $ear"#9 be)ore ao'("o#

'he C)0E3EC promulated =esolution No. ?7#+ on *anuary #+, $(#% then came upwith a public hearin on *anuary %#, $(#% to explain what it had done, particularly onthe areate1based air time limits. 'his circumstance also renders the new

reulation, particularly on the adoption of the a99re9a(eBba%e airtime limit,8uestionable. It must not be overloo"ed that the new =esolution introduced a radicalchane in the manner in which the rules on airtime for political advertisements are tobe rec"oned. As such there is a need for ade8uate and effective means by which theymay be adopted, disseminated and implemented. In this reard, it is not enouh thatthey be published 1 or explained 1 after they have been adopted.

!hile it is true that the C)0E3EC is an independent office and not a mereadministrative aency under the Executive <epartment, rules which apply to the latter must also be deemed to similarly apply to the former, not as a matter of administrativeconvenience but as a dictate of due process. And this assumes reater sinificanceconsiderin the important and pivotal role that the C)0E3EC plays in the life of thenation. 'hus, whatever miht have been said in Commissioner of Internal =evenue v.Court of Appeals,+; should also apply mutatis mutandis to the C)0E3EC when it

comes to promulatin rules and reulations which adversely affect, or impose aheavy and substantial burden on, the citienry in a matter that implicates the verynature of overnment we have adopted

It should be understandable that when an administrative rule is merelyinterpretative in nature, its applicability needs nothin further than its bareissuance for it ives no real conse8uence more than what the law itself hasalready prescribed. When# u"on the other hand# the administrative rule goes+eyond merely "roviding for the means that can facilitate or render least cum+ersome the im"lementation of the la* +ut su&stantiall, adds to or increases the &urden o" those go/erned # it +ehooves the agency toaccord at least to those directly affected a chance to +e heard# and thereafter to +e duly informed# +efore that ne* issuance is given the forceand effect of la*.

A readin of =0C %91?%, particularly considerin the circumstances under which it has been issued, convinces us that the circular cannot be viewedsimply as a corrective measure 2revo"in in the process the previousholdins of past Commissioners4 or merely as construin -ection #&$2c42l4 of the NI=C, as amended, but has, in fact and most importantly, been made inorder to place 5>ope 3uxury,5 5remium 0ore5 and 5Champion5 within theclassification of locally manufactured ciarettes bearin forein brands andto thereby have them covered by =A 97+&. -pecifically, the new law wouldhave its amendatory provisions applied to locally manufactured ciaretteswhich at the time of its effectivity were not so classified as bearin foreinbrands. x x x In so doin, the BI= not simply interpreted the lawL verily, itleislated under its 8uasi1leislative authority. 'he due observance of the

re8uirements of notice, of hearin, and of publication should not have beenthen inored.+?

:or failin to conduct prior hearin before comin up with =esolution No. ?7#+, said=esolution, specifically in reard to the new rule on areate airtime is declareddefective and ineffectual.

9. Re%ou("o# No. 615 oe% #o( "+'o%ea# u#rea%o#abe bure# o# ($ebroa&a%( "#u%(ry

It is a basic postulate of due process, specifically in relation to its substantivecomponent, that any overnmental rule or reulation must be reasonable in its

operations and its impositions. Any restrictions, as well as sanctions, must bereasonably related to the purpose or objective of the overnment in a manner thatwould not wor" unnecessary and unjustifiable burdens on the citienry. etitioner /0A assails certain re8uirements imposed on broadcast stations as unreasonable. Itexplained

+.&( etitioner /0A currently operates and monitors $# :0 and A0 radiostations nationwide and ; oriinatin television stations 2includin its maintransmitter in Oueon City4 which are authoried to dechain nationalprorams for airin and insertion of local content and advertisements.

+.&# In liht of the New =ules wherein a candidateJs airtime minutes areapplied on an areate basis and considerin that said =ules declare itunlawful in -ection 92 d4 thereof for a radio, television station or other mass

media to sell or ive for free airtime to a candidate in excess of that allowedby law or by said New =ules

5-ection 9. &rohi+ited 5orms of Election &ro"aganda 1 <urin thecampain period, it is unlawful x x x x x x x x x

2d4 )or a#y #e7%'a'er or 'ub"&a("o#, ra"o, (ee;"%"o# or &abe(ee;"%"o# %(a("o#, or o($er +a%% +e"a, or a#y 'er%o# +a?"#9u%e o) ($e +a%% +e"a (o %e or (o 9";e )ree o) &$ar9e printspace or a"r ("+e for campain or election propaanda purposes (oa#y &a#"a(e or 'ar(y "# e@&e%% o) ($e %"<e, ura("o# or )re4ue#&y au($or"<e by a7 or ($e%e rue% L

x x x x x x x x x

2Emphasis supplied4

petitioner /0A submits that compliance with the New =ules in order to avoidadministrative or criminal liability would be unfair, cruel and oppressive.

x x x x.

+.&% In the present situation wherein airtime minutes shall be shared by alltelevision and radio stations, broadcast mass media oraniations wouldsurely encounter insurmountable difficulties in monitorin the airtime minutesspent by the numerous candidates for various elective positions, in real time.

+.&& An in8uiry with the National 'elecommunications Commission 2N'C4bears out that there are %9$ television stations and %?; A0 and ;(( :0

radio stations nationwide as of *une $(#$. In addition, there are #, ##% cable



' providers authoried by the N'C to operate within the country as of thesaid date.

+.&+ /iven such numbers of broadcast entities and the necessity to monitor political advertisements pursuant to the New =ules, petitioner )0Aestimates that monitorin television broadcasts of all authoried televisionstation would involve 9,&&( manhours per day. 'o aravate matters, since acandidate may also spend hisDher broadcastin minutes on cable ',additional $;#,(&( manhours per day would have to be spent in monitorinthe various channels carried by cable ' throuhout the hilippines. As far

as radio broadcasts 2both A0 and :0 stations4 are concerned, around$%,?7( manhours per day would have to be devoted by petitioner )0A toobtain an accurate and timely determination of a political candidateJsremainin airtime minutes. <urin the campain period, petitioner )0Awould have to spend an estimated $9,&?&,9$( manhours in monitorin theelection campain commercials of the different candidates in thecountry.?@*"hi?

+.&7 In order to carry1out the obliations imposed by the New =ules,petitioner )0A further estimates that it would need to enae and train%?,(++ additional persons on an eiht1hour shift, and assin them all over the country to perform the re8uired monitorin of radio, television and cable' broadcasts. In addition, it would li"ewise need to allot radio, television,recordin e8uipment and computers, as well as telecommunications

e8uipment, for this surveillance and monitorin exercise, thus imputinadditional costs to the company. Attached herewith are the computationsexplainin how the afore1said fiures were derived and the conservativeassumptions made by petitioner )0A in reachin said fiures, as Annex 5>5.

+.&9 Needless to say, such time, manpower re8uirements, expense andeffort would have to be replicated by each and every radio station to ensurethat they have properly monitored around %% national and more than &(,(((local candidatesJ airtime minutes and thus, prevent any ris" of administrativeand criminal liability.7(

'he Court cannot aree with the contentions of /0A. 'he apprehensions of thepetitioner appear more to be the result of a misappreciation of the real import of thereulation rather than a real and present threat to its broadcast activities. 'he Court is

more in areement with the respondent when it explained that

'he leal duty of monitorin lies with the Comelec. Broadcast stations aremerely re8uired to submit certain documents to aid the Comelec in ensurinthat candidates are not sold airtime in excess of the allowed limits. 'hesedocuments include 2#4 certified true copies of broadcast los, certificates of performance, and certificates of acceptance, or other analoous record onspecified dates 2-ection ?@d@%, =esolution No. ?7#+, in relation to -ection7.$, =.A. ?((7L and 2$4 copies of all contract for advertisin, promotin or opposin any political party or the candidacy of any person for public officewithin five 2+4 days after its sinin 2-ection 7.%, =.A. ?((74.

W W W W W

@'here is absolutely no duty on the broadcast stations to do monitorin,much less monitorin in real time. /0A rossly exaerates when it claimsthat the non1existent duty would re8uire them to hire and train an astoundinadditional %?,(++ personnel wor"in on eiht1hour shifts all over thecountry.7#

'he Court holds, accordinly, that, contrary to petitionersJ contention, the =eportin=e8uirement for the C)0E3ECJs monitorin is reasonable.

:urther, it is apropos to note that, pursuant to =esolution No. ?7%#,7$ the respondent

revised the third pararaph of -ection ? 2a4. As revised, the provision now reads Appearance or uestin by a candidate on any bona fide newscast, bonafide news interview, bona fide news documentary, if the appearance of thecandidate is incidental to the presentation of the subject or subjects coveredby the news documentary, or on1the1spot coverae of bona fide newsevents, includin but not limited to events sanctioned by the Commission onElections, political conventions, and similar activities, shall not be deemed tobe broadcast election propaanda within the meanin of this provision. For 'ur'o%e% o) +o#"(or"#9 by ($e CO!ELEC a# e#%ur"#9 ($a( 'ar("e% a#&a#"a(e% 7ere a))ore e4ua o''or(u#"("e% (o 'ro+o(e ($e"r &a#"a&y, ($e +e"a e#("(y %$a 9";e 'r"or #o("&e (o ($e CO!ELEC,($rou9$ ($e a''ro'r"a(e Re9"o#a Ee&("o# *"re&(or RE*, or "# ($e&a%e o) ($e Na("o#a Ca'"(a Re9"o# NCR, ($e Eu&a("o# a#

I#)or+a("o# *e'ar(+e#( EI*. I) %u&$ 'r"or #o("&e "% #o( )ea%"be or 'ra&("&abe, ($e #o("&e %$a be %e#( 7"($"# (7e#(yB)our 2 $our% )ro+($e )"r%( broa&a%( or 'ub"&a("o#. Nothin in the foreoin sentence shallbe construed as relievin broadcasters, in connection with the presentationof newscasts, news interviews, news documentaries, and on1the1spotcoverae of news events, from the obliation imposed upon them under -ections #( and #& of these =ules.57%

:urther, the petitioner in /.=. No. $(+%9& assails the constitutionality of suchmonitorin re8uirement, contendin, amon others, that it constitutes prior restraint.'he Court finds otherwise. -uch a re8uirement is a reasonable means adopted by theC)0E3EC to ensure that parties and candidates are afforded e8ual opportunities topromote their respective candidacies. nli"e the restrictive areate1based airtimelimits, the directive to ive prior notice is not unduly burdensome and unreasonable,

much less could it be characteried as prior restraint since there is no restriction ondissemination of information before broadcast. Additionally, it is relevant to point outthat in the oriinal =esolution No. ?7#+, the pararaph in issue was worded in thiswise

Appearance or uestin by a candidate on any bona fide newscast, bonafide news interview, bona fide news documentary, if the appearance of thecandidate is incidental to the presentation of the subject or subjects coveredby the news documentary, or on1the1spot coverae of bona fide newsevents, includin but not limited to events sanctioned by the Commission onElections, political conventions, and similar activities, shall not be deemed tobe broadcast election propaanda within the meanin of this provision. Todeterine !hether the a##earance or guesting in a #rogra is &ona

"ide$ the &roadcast stations or entities ust sho! that 4%5 #rior a##ro/al o" the Coission !as secured6 and 4'5 candidates and



#arties !ere a""orded e7ual o##ortunities to #roote their candidac, .Nothin in the foreoin sentence shall be construed as relievinbroadcasters, in connection with the presentation of newscasts, newsinterviews, news documentaries, and on1the1spot coverae of news events,from the obliation imposed upon them under -ections #( and #& of these=ules.7&

Comparin the oriinal with the revised pararaph, one could readily appreciate whatthe C)0E3EC had done 1 to modify the re8uirement from 5prior approval5 to 5prior notice.5 !hile the former may be suestive of a censorial tone, thus invitin a chare

of prior restraint, the latter is more in the nature of a content1neutral reulationdesined to assist the poll body to underta"e its job of ensurin fair elections withouthavin to underta"e any chore of approvin or disapprovin certain expressions.

A%o, ($e r"9$( (o re'y 'ro;"%"o# "% rea%o#abe

In the same way that the Court finds the 5prior notice5 re8uirement as notconstitutionally infirm, it similarly concludes that the 5riht to reply5 provision isreasonable and consistent with the constitutional mandate.

-ection #& of =esolution No. ?7#+, as revised by =esolution No. ?7%#, provides

-EC'I)N #&. Right to Re#l, . 1 All reistered political parties, party1listroups or coalitions and bona fide candidates shall have the riht to reply tochares published or aired aainst them. 'he reply shall be iven publicityby the newspaper, television, andDor radio station which first printed or airedthe chares with the same prominence or in the same pae or section or inthe same time slot as the first statement.

=eistered political parties, party1list roups or coalitions and bona fidecandidates may invo"e the riht to reply by submittin within a nonextendibleperiod of forty1eiht hours from first broadcast or publication, a formalverified claim aainst the media outlet to the C)0E3EC, throuh theappropriate =E<. 'he claim shall include a detailed enumeration of thecircumstances and occurrences which warrant the invocation of the riht toreply and must be accompanied by supportin evidence, such a copy of thepublication or recordin of the television or radio broadcast, as the case maybe. If the supportin evidence is not yet available due to circumstances

beyond the power of the claimant, the latter shall supplement his claim assoon as the supportin evidence becomes available, without delay on thepart of the claimant. 'he claimant must li"ewise furnish a copy of the verifiedclaim and its attachments to the media outlet concerned prior to the filin of the claim with the C)0E3EC.

'he C)0E3EC, throuh the =E<, shall view the verified claim within forty1eiht 2 &;4 hours from receipt thereof, includin supportin evidence, and if circumstances warrant, ive notice to the media outlet involved for appropriate action, which shall, within forty1eiht 2 &;4 hours, submit itscomment, answer or response to the =E<, explainin the action it has ta"ento address the claim. 'he media outlet must li"ewise furnish a copy of thesaid comment, answer or response to the claimant invo"in the riht to reply.

-hould the claimant insist that hisDher riht to reply was not addressed,heDshe may file the appropriate petition andDor complaint before theCommission on Elections or its field offices, which shall be endorsed to theCler" of Court.

'he attac" on the validity of the 5riht to reply5 provision is primarily anchored on thealleed round of prior restraint, specifically in so far as such a re8uirement may havea chillin effect on speech or of the freedom of the press.

etitioner ABC states, inter alia

+.#&+. A 5conscious and detailed consideration5 of the interplay of therelevant interests 1 the constitutional mandate rantin candidates the rihtto reply and the inviolability of the constitutional freedom of expression,speech, and the press 1 will show that the =iht to =eply, as provided for inthe Assailed =esolution, is an impermissible restraint on these fundamentalfreedoms.

+.#&7. An evaluation of the factors set forth in -oriano 2for the balancin of interests test4 with respect to the present controversy will show that theConstitution does not tilt the balance in favor of the =iht to =eply provisionin the Assailed =esolution and the supposed overnmental interest itattempts to further.7+

'he Constitution itself provides as part of the means to ensure free, orderly, honest,fair and credible elections, a tas" addressed to the C)0E3EC to provide for a riht toreply.77 /iven that express constitutional mandate, it could be seen that the:undamental 3aw itself has weihed in on the balance to be struc" between thefreedom of the press and the riht to reply. Accordinly, one is not merely to see thee8uation as purely between the press and the riht to reply. Instead, theconstitutionally mandated desiderata of free, orderly, honest, peaceful, and credibleelections would necessarily have to be factored in tryin to see where the balance liesbetween press and the demands of a riht1to1reply.

0oreover, as already discussed by the Court in 'elecommunications and Broadcast Attorneys of the hilippines, Inc. v. Commission on Elections.79

In truth, radio and television broadcastin companies, which are iven

franchises, do not own the airwaves and fre8uencies throuh which theytransmit broadcast sinals and imaes. 'hey are merely iven the temporaryprivilee of usin them. -ince a franchise is a mere privilee, the exercise of the privilee may reasonably be burdened with the performance by therantee of some form of public service. x x x7;

=elevant to this aspect are these passaes from an American -upreme Courtdecision with reard to broadcastin, riht to reply re8uirements, and the limitationson speech

!e have lon reconied that each ediu o" ex#ression #resentss#ecial First Aendent #ro&les. :ose"h Burstyn# 6nc. v. Wilson# HFH0S FDI# IG4IH# DJ L Ed ?DK# =G S Ct ===. And o" all "ors o" counication$ it is &roadcasting that has recei/ed the ost liited

First Aendent #rotection. 'hus, althouh other spea"ers cannot belicensed except under laws that carefully define and narrow official



discretion, a broadcaster may be deprived of his license and his forum if theCommission decides that such an action would serve 5the public interest,convenience, and necessity.5 Siilarl,$ although the First Aendent #rotects ne!s#a#er #u&lishers "ro &eing re7uired to #rint the re#lieso" those !ho the, critici8e# Miami 7erald &u+lishing Co. v. 3ornillo# F?K 0S GF?# F? L Ed Gd =H# DF S Ct GKH?# it a""ords no such #rotection to&roadcasters6 on the contrar,$ the, ust gi/e "ree tie to the /ictiso" their criticis. /ed Lion Broadcasting Co. v. 5CC# HDI 0S. HJ=# GH L Ed Gd H=?# KD S Ct ?=DF.

'he reasons for these distinctions are complex, but two have relevance tothe present case. :irst, the broadcast media have established a uni8uelypervasive presence in the lives of all Americans. atently offensive, indecentmaterial presented over the airwaves confronts the citien not only in public,but also in the privacy of the home, where the individualJs riht to be leftalone plainly outweihs the :irst Amendment rihts of an intruder. =owan v.ost )ffice <ept., %?9 - 9$;, $+ 3 Ed $d 9%7, ?( - Ct #&;&. Because thebroadcast audience is constantly tunin in and out, prior warnins cannotcompletely protect the listener or viewer from unexpected proram content.'o say that one may avoid further offense by turnin off the radio when hehears indecent lanuae is li"e sayin that the remedy for an assault is torun away after the first blow. )ne may han up on an indecent phone call,but that option does not ive the caller a constitutional immunity or avoid aharm that has already ta"en place.

-econd, broadcastin is uni8uely accessible to children, even those tooyoun to read. Althouh CohenJs written messae miht have beenincomprehensible to a first rader, acificaJs broadcast could have enlareda childJs vocabulary in an instant. )ther forms of offensive expression maybe withheld from the youn without restrictin the expression at its source.Boo"stores and motion picture theaters, for example, may be prohibited from

ma"in indecent material available to children. !e held in /insber v. NewPor", %?( - 7$?, that the overnmentJs interest in the 5well1bein of itsyouth5 and in supportin 5parentsJ claim to authority in their own household5 justified the reulation of otherwise protected expression. 'he ease withwhich children may obtain access to broadcast material, coupled with theconcerns reconied in /insber, amply justify special treatment of indecentbroadcastin.7?

/iven the foreoin considerations, the traditional notions of preferrin speech andthe press over so many other values of society do not readily lend itself to this

particular matter. Instead, additional weiht should be accorded on the constitutionaldirective to afford a riht to reply. If there was no such mandate, then the submissionsof petitioners may more easily commend themselves for this CourtJs acceptance. Butas noted above, this is not the case. 'heir aruments simplistically provide minimalimportance to that constitutional command to the point of marinaliin its importancein the e8uation.

In fine, when it comes to election and the exercise of freedom of speech, of expression and of the press, the latter must be properly viewed in context as beinnecessarily made to accommodate the imperatives of fairness by ivin teeth andsubstance to the riht to reply re8uirement.

HEREFORE, premises considered, the petitions are AR/IALL GRAN/E*,-ection ? 2a4 of =esolution No. ?7#+, as amended by =esolution No. ?7%#, is

declared NCONS/I//IONAL and, therefore, NLL and VOI*. 'heconstitutionality of the remainin provisions of =esolution No. ?7#+, as amended by=esolution No. ?7%#, is upheld and remain in full force and effect.

In view of this <ecision, the 'emporary =estrainin )rder issued by the Court on April#7, $(#% is hereby made ER!ANEN/.

SO OR*ERE*.

*ISINI V. SECRE/AR OF S/ICE

EN BANC

G.R. No. 203335 February 11, 201

OSE ESS !. *ISINI, R., ROENA S. *ISINI, LIANNE IV . !E*INA,ANE//E /ORAL a# ERNES/O SONI*O, R., etitioners,vs./HE SECRE/AR OF S/ICE, /HE SECRE/AR OF /HE *EAR/!EN/ OF/HE IN/ERIOR AN* LOCAL GOVERN!EN/, /HE EMEC/IVE *IREC/OR OF/HE INFOR!A/ION AN* CO!!NICA/IONS /ECHNOLOG OFFICE, /HECHIEF OF /HE HILIINE NA/IONAL OLICE a# /HE *IREC/OR OF /HENA/IONAL REA OF INVES/IGA/ION, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 2032

LOIS DAROD C. IRAOGO, etitioner,

vs.

NA/IONAL REA OF INVES/IGA/ION a# HILIINE NA/IONAL OLICE,=espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 203306

ALA NG !A!A!AHAAG ALA!, H!AN NG !A!A!AAN !OVE!EN/,INC., ERR S. A, ER/ENI D/O/OD CASING, HERNANI . CARE, ERCLAI*, /RAC CARERA, RONAL*O E. REN/A, CIRILO . SAARRE, R.,*ERVIN CAS/RO, E/ AL., etitioners,vs.OFFICE OF /HE RESI*EN/, re're%e#(e by re%"e#( e#"9#o S"+eo# A4u"#oIII, SENA/E OF /HE HILIINES, a# HOSE OF RERESEN/A/IVES,=espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 20335

SENA/OR /EOFIS/O *L GINGONA III, etitioner,



vs.EMEC/IVE SECRE/AR, /HE SECRE/AR OF S/ICE, /HE SECRE/AR OF/HE *EAR/!EN/ OF IN/ERIOR AN* LOCAL GOVERN!EN/, /HE CHIEF OF/HE HILIINE NA/IONAL OLICE, a# *IREC/OR OF /HE NA/IONALREA OF INVES/IGA/ION, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 20338

ALEMAN*ER A*ONIS, ELLEN /OR*ESILLAS, !A. GISELA OR*ENESBCASCOLAN, H. HARR L. ROE, R., RO!EL R. AGARES, a# GILER/ /.AN*RES, etitioners,vs./HE EMEC/IVE SECRE/AR, /HE *EAR/!EN/ OF *GE/ AN*!ANAGE!EN/, /HE *EAR/!EN/ OF S/ICE, /HE *EAR/!EN/ OF /HEIN/ERIOR AN* LOCAL GOVERN!EN/, /HE NA/IONAL REA OFINVES/IGA/ION, /HE HILIINE NA/IONAL OLICE, AN* /HE INFOR!A/IONAN* CO!!NICA/IONS /ECHNOLOG OFFICEB*EAR/!EN/ OF SCIENCEAN* /ECHNOLOG, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 20331

HON. RA!ON* V. ALA/INO, HON. AN/ONIO /INIO, VENCER !ARICRISOS/O!O OF ANAAAN, !A. A/HERINE ELONA OF /HE HILIINECOLLEGIAN, ISAELLE /HERESE AGISI OF /HE NA/IONAL NION OFS/*EN/S OF /HE HILIINES, E/ AL., etitioners,vs.AI/O N. OCHOA, R., "# $"% &a'a&"(y a% E@e&u(";e Se&re(ary a# a(erBe9oo) re%"e#( e#"9#o S"+eo# A4u"#o III, LEILA *E LI!A "# $er &a'a&"(y a%Se&re(ary o) u%("&e, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 2030

AGONG ALANSANG !AAAAN SECRE/AR GENERAL RENA/O !.

REES, R., Na("o#a Ar("%( IENVENI*O L. L!ERA, C$a"r'er%o# o) Co#&er#e Ar("%(% o) ($e $""''"#e%, EL!ER C. LAOG, C$a"r'er%o# o) "u%a#9 !ayo #o, CRIS/INA E. ALAA, Se&re(ary Ge#era o) ara'a(a#,FER*INAN* R. GAI/E, C$a"r'er%o# o) CORAGE, OEL . !AGLNSO*, V"&ere%"e#( o) A#a?'a7"% ar(yBL"%(, LANA R. LINAAN, Se&re(ary Ge#eraGabr"ea o+e#% ar(y, A*OLFO ARES . G/IERREZ, a# LIS GARCIA!A/IAG, etitioners,vs.ENIGNO SI!EON C. AINO III, re%"e#( o) ($e Re'ub"& o) ($e $""''"#e%,AI/O N. OCHOA, R., E@e&u(";e Se&re(ary, SENA/E OF /HE HILIINES,re're%e#(e by SENA/E RESI*EN/ AN ONCE ENRILE, HOSE OFRERESEN/A/IVES, re're%e#(e by SEAER FELICIANO EL!ON/E, R.,LEILA *E LI!A, Se&re(ary o) ($e *e'ar(+e#( o) u%("&e, LOIS NAOLEON C.

CASA!RE, E@e&u(";e *"re&(or o) ($e I#)or+a("o# a# Co++u#"&a("o#%/e&$#oo9y O))"&e, NONNA/S CAESAR R. ROAS, *"re&(or o) ($e Na("o#a

ureau o) I#;e%("9a("o#, *GEN. NICANOR A. AR/OLO!E, C$"e) o) ($e$""''"#e Na("o#a o"&e, !ANEL A. ROMAS II, Se&re(ary o) ($e *e'ar(+e#(o) ($e I#(er"or a# Lo&a Go;er#+e#(, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 2030

!ELENCIO S. S/A. !ARIA, SE*FRE !. CAN*ELARIA, A!ARI/A S/A. !ARIA,RA AOLO . SAN/IAGO, GILER/ V. SE!RANO, a# RAN ERE!IAH *.AN a o) ($e A(e#eo Hu+a# R"9$(% Ce#(er, etitioners,

vs.HONORALE AI/O OCHOA "# $"% &a'a&"(y a% E@e&u(";e Se&re(ary,HONORALE LEILA *E LI!A "# $er &a'a&"(y a% Se&re(ary o) u%("&e,HONORALE !ANEL ROMAS "# $"% &a'a&"(y a% Se&re(ary o) ($e *e'ar(+e#(o) I#(er"or a# Lo&a Go;er#+e#(, /$e CHIEF o) ($e $""''"#e Na("o#a o"&e,/$e *IREC/OR o) ($e Na("o#a ureau o) I#;e%("9a("o# a o) ($e E@e&u(";e*e'ar(+e#( o) Go;er#+e#(, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 20353

NA/IONAL NION OF ORNALIS/S OF /HE HILIINES N, HILIINERESS INS/I//E I, CEN/ER FOR !E*IA FREE*O! AN*

RESONSIILI/, ROENA CARRANZA ARAAN, !ELIN*A IN/OSB*EESS, OSEH ALN ALRO, ARIEL SEELLINO AN* /HE E/I/IONERSIN /HE eBE/I/ION $(('777.#u:'.or9#oB(oBra1015, etitioners,vs./HE EMEC/IVE SECRE/AR, /HE SECRE/AR OF S/ICE, /HESECRE/AR OF /HE IN/ERIOR AN* LOCAL GOVERN!EN/, /HE SECRE/AROF *GE/ AN* !ANAGE!EN/, /HE *IREC/OR GENERAL OF /HEHILIINE NA/IONAL OLICE, /HE *IREC/OR OF /HE NA/IONAL REAOF INVES/IGA/ION, /HE CERCRI!E INVES/IGA/ION AN* COOR*INA/INGCEN/ER, AN* ALL AGENCIES AN* INS/R!EN/ALI/IES OF GOVERN!EN/AN* ALL ERSONS AC/ING N*ER /HEIR INS/RC/IONS, OR*ERS,*IREC/ION IN RELA/ION /O /HE I!LE!EN/A/ION OF RELIC AC/ NO.1015, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 2035

AL CORNELIS /. CAS/ILLO RAN *. AN*RES, etitioners,vs./HE HON. SECRE/AR OF S/ICE /HE HON. SECRE/AR OF IN/ERIOR AN*LOCAL GOVERN!EN/, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 2036

AN/HON IAN !. CRZ- !ARCELO R. LAN*ICHO- ENA!IN NOEL A.

ESINA- !ARC RONAL* C. RI!ORIN- LIS *. ROCAS- OLIVER RICHAR*



V. ROILLO- AARON ERIC A. LOZA*A- GERAR* A*RIAN . !AGNAE- OSEREGINAL* A. RA!OS- !A. ROSARIO /. AN- REN*ALN . RA!IREZ-!AREEN A. HER!I/ANIO- RIS/INE O S. RE!EN/ILLA- !ARICEL O.GRA- LIS IVAN F. CAIGON- ENRALH S. - CE LOGGERSSOCIE/, INC. RESI*EN/ REN . LICERA, R- a# INO EMA/OFLOG AAR*S, INC. COOR*INA/OR E*RO E. RAHON- etitioners,vs.HIS EMCELLENC ENIGNO S. AINO III, "# $"% &a'a&"(y a% re%"e#( o) ($eRe'ub"& o) ($e $""''"#e%- SENA/E OF /HE HILIINES, re're%e#(e byHON. AN ONCE ENRILE, "# $"% &a'a&"(y a% Se#a(e re%"e#(- HOSE OF

RERESEN/A/IVES, re're%e#(e by FELICIANO R. EL!ON/E, R., "# $"%&a'a&"(y a% S'ea?er o) ($e Hou%e o) Re're%e#(a(";e%- HON. AI/O N.OCHOA, R., "# $"% &a'a&"(y a% E@e&u(";e Se&re(ary- HON. LEILA !. *E LI!A, "#$er &a'a&"(y a% Se&re(ary o) u%("&e- HON. LOIS NAOLEON C. CASA!RE,"# $"% &a'a&"(y a% E@e&u(";e *"re&(or, I#)or+a("o# a# Co++u#"&a("o#%/e&$#oo9y O))"&e- HON. NONNA/S CAESAR R. ROAS, "# $"% &a'a&"(y a%*"re&(or, Na("o#a ureau o) I#;e%("9a("o#- a# *GEN. NICANOR A.AR/OLO!E, "# $"% &a'a&"(y a% C$"e), $""''"#e Na("o#a o"&e, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 203501

HILIINE AR ASSOCIA/ION, INC., etitioner,

vs.HIS EMCELLENC ENIGNO S. AINO III, "# $"% o))"&"a &a'a&"(y a% re%"e#(o) ($e Re'ub"& o) ($e $""''"#e%- HON. AI/O N. OCHOA, R., "# $"% o))"&"a&a'a&"(y a% E@e&u(";e Se&re(ary- HON. LEILA !. *E LI!A, "# $er o))"&"a&a'a&"(y a% Se&re(ary o) u%("&e- LOIS NAOLEON C. CASA!RE, "# $"%o))"&"a &a'a&"(y a% E@e&u(";e *"re&(or, I#)or+a("o# a# Co++u#"&a("o#%/e&$#oo9y O))"&e- NONNA/S CAESAR R. ROAS, "# $"% o))"&"a &a'a&"(y a%*"re&(or o) ($e Na("o#a ureau o) I#;e%("9a("o#- a# *IREC/OR GENERALNICANOR A. AR/OLO!E, "# $"% o))"&"a &a'a&"(y a% C$"e) o) ($e $""''"#eNa("o#a o"&e, =espondents.

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G.R. No. 20350

AAN !NA RERESEN/A/IVE NERI . COL!ENARES, etitioner,vs./HE EMEC/IVE SECRE/AR AI/O OCHOA, R., =espondent.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 203515

NA/IONAL RESS CL OF /HE HILIINES, INC. re're%e#(e by ENN *.AN/IOR*A "# $"% &a'a&"(y a% re%"e#( a# "# $"% 'er%o#a &a'a&"(y, etitioner,vs.OFFICE OF /HE RESI*EN/, RES. ENIGNO SI!EON AINO III,*EAR/!EN/ OF S/ICE, *EAR/!EN/ OF IN/ERIOR AN* LOCAL

GOVERN!EN/, HILIINE NA/IONAL OLICE, NA/IONAL REA OFINVES/IGA/ION, *EAR/!EN/ OF *GE/ AN* !ANAGE!EN/ AN* ALL

O/HER GOVERN!EN/ INS/R!EN/ALI/IES HO HAVE HAN*S IN /HEASSAGE AN*OR I!LE!EN/A/ION OF RELIC AC/ 1015, =espondents.

x 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 x

G.R. No. 203518

HILIINE IN/ERNE/ FREE*O! ALLIANCE, &o+'o%e o) *AILABHILIINE COLLEC/IVE FOR !O*ERN HEROIS!, re're%e#(e by Le#"Vea%&o, AR/I*O LAAS NG !ASA, re're%e#(e by Ce%ar S. !ee#&"o,FRANCIS ES/ON R. ACERO, !ARLON AN/HON RO!ASAN/A /ONSON,

/EO*ORO A. CASIPO, NOE!I LAR*IZAALB*A*O, I!EL*A ORALES, A!ES!A//HE . !IRAFLOR, AN G.!. RAGRAGIO, !ARIA FA/I!A A. VILLENA,!E*AR*O !. !ANRIE, R., LAREN *A*O, !ARCO VI//ORIA /OIASS!AAO, IRENE CHIA, ERAS/S NOEL /. *ELIZO, CRIS/INA SARAH E.OSORIO, RO!EO FAC/OLERIN, NAO!I L. /AS, ENNE/H ENG, ANAALEMAN*RA C. CAS/RO, etitioners,vs./HE EMEC/IVE SECRE/AR, /HE SECRE/AR OF S/ICE, /HESECRE/AR OF IN/ERIOR AN* LOCAL GOVERN!EN/, /HE SECRE/AR OFSCIENCE AN* /ECHNOLOG, /HE EMEC/IVE *IREC/OR OF /HEINFOR!A/ION /ECHNOLOG OFFICE, /HE *IREC/OR OF /HE NA/IONALREA OF INVES/IGA/ION, /HE CHIEF, HILIINE NA/IONAL OLICE, /HEHEA* OF /HE *O OFFICE OF CERCRI!E, a# /HE O/HER !E!ERS OF

/HE CERCRI!E INVES/IGA/ION AN* COOR*INA/ING CEN/ER,=espondents.

* E C I S I O N

AA*, J.:

'hese consolidated petitions see" to declare several provisions of =epublic Act 2=.A.4#(#9+, the Cybercrime revention Act of $(#$, unconstitutional and void.

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'he cybercrime law aims to reulate access to and use of the cyberspace. sin hislaptop or computer, a person can connect to the internet, a system that lin"s him toother computers and enable him, amon other thins, to

#. Access virtual libraries and encyclopedias for all "inds of information thathe needs for research, study, amusement, upliftment, or pure curiosityL

$. ost billboard1li"e notices or messaes, includin pictures and videos, for the eneral public or for special audiences li"e associates, classmates, or friends and read postins from themL

%. Advertise and promote oods or services and ma"e purchases andpaymentsL

&. In8uire and do business with institutional entities li"e overnmentaencies, ban"s, stoc" exchanes, trade houses, credit card companies,public utilities, hospitals, and schoolsL and



+. Communicate in writin or by voice with any person throuh his e1mailaddress or telephone.

'his is cyberspace, a system that accommodates millions and billions of simultaneous and onoin individual accesses to and uses of the internet. 'hecyberspace is a boon to the need of the current eneration for reater information andfacility of communication. But all is not well with the system since it could not filter outa number of persons of ill will who would want to use cyberspace technoloy for mischiefs and crimes. )ne of them can, for instance, avail himself of the system tounjustly ruin the reputation of another or bully the latter by postin defamatory

statements aainst him that people can read.

And because lin"in with the internet opens up a user to communications from others,the ill1motivated can use the cyberspace for committin theft by hac"in into or surreptitiously accessin his ban" account or credit card or defraudin him throuhfalse representations. 'he wic"ed can use the cyberspace, too, for illicit traffic"in insex or for exposin to pornoraphy uileless children who have access to the internet.:or this reason, the overnment has a leitimate riht to reulate the use of cyberspace and contain and punish wrondoins.

Notably, there are also those who would want, li"e vandals, to wrea" or cause havocto the computer systems and networ"s of indispensable or hihly useful institutions aswell as to the laptop or computer prorams and memories of innocent individuals.'hey accomplish this by sendin electronic viruses or virtual dynamites that destroy

those computer systems, networ"s, prorams, and memories. 'he overnmentcertainly has the duty and the riht to prevent these tomfooleries from happenin andpunish their perpetrators, hence the Cybercrime revention Act.

But petitioners claim that the means adopted by the cybercrime law for reulatinundesirable cyberspace activities violate certain of their constitutional rihts. 'heovernment of course asserts that the law merely see"s to reasonably put order intocyberspace activities, punish wrondoins, and prevent hurtful attac"s on the system.

endin hearin and adjudication of the issues presented in these cases, on:ebruary +, $(#% the Court extended the oriinal #$(1day temporary restrainin order 2'=)4 that it earlier issued on )ctober ?, $(#$, enjoinin respondent overnmentaencies from implementin the cybercrime law until further orders.

/$e I%%ue% re%e#(eetitioners challene the constitutionality of the followin provisions of the cybercrimelaw that reard certain acts as crimes and impose penalties for their commission aswell as provisions that would enable the overnment to trac" down and penalieviolators. 'hese provisions are

a. -ection &2a42#4 on Illeal AccessL

b. -ection &2a42%4 on <ata InterferenceL

c. -ection &2a4274 on Cyber1s8uattinL

d. -ection &2b42%4 on Identity 'heftL

e. -ection &2c42#4 on CybersexL

f. -ection &2c42$4 on Child ornoraphyL

. -ection &2c42%4 on nsolicited Commercial CommunicationsL

h. -ection &2c42&4 on 3ibelL

i. -ection + on Aidin or Abettin and Attempt in the Commission of CybercrimesL

j. -ection 7 on the enalty of )ne <eree >iherL

". -ection 9 on the rosecution under both the =evised enal Code 2=C4and =.A. #(#9+L

l. -ection ; on enaltiesL

m. -ection #$ on =eal1'ime Collection of 'raffic <ataL

n. -ection #% on reservation of Computer <ataL

o. -ection #& on <isclosure of Computer <ataL

p. -ection #+ on -earch, -eiure and Examination of Computer <ataL

8. -ection #9 on <estruction of Computer <ataL

r. -ection #? on =estrictin or Bloc"in Access to Computer <ataL

s. -ection $( on )bstruction of *usticeL

t. -ection $& on Cybercrime Investiation and Coordinatin Center 2CICC4Land

u. -ection $72a4 on CICC6s owers and :unctions.

-ome petitioners also raise the constitutionality of related Articles %+%, %+&, %7#, and%7$ of the =C on the crime of libel.

/$e Ru"#9% o) ($e Cour(

Section +4a54%5

-ection &2a42#4 provides

-ection &. Cy+ercrime Offenses. M 'he followin acts constitute the offenseof cybercrime punishable under this Act

2a4 )ffenses aainst the confidentiality, interity and availability of computer data and systems

2#4 Illeal Access. M 'he access to the whole or any part of a computer system without riht.

etitioners contend that -ection &2a42#4 fails to meet the strict scrutiny standardre8uired of laws that interfere with the fundamental rihts of the people and shouldthus be struc" down.



'he Court has in a way found the strict scrutiny standard, an American constitutionalconstruct,# useful in determinin the constitutionality of laws that tend to taret a classof thins or persons. Accordin to this standard, a leislative classification thatimpermissibly interferes with the exercise of fundamental riht or operates to thepeculiar class disadvantae of a suspect class is presumed unconstitutional. 'heburden is on the overnment to prove that the classification is necessary to achieve acompellin state interest and that it is the least restrictive means to protect suchinterest.$ 3ater, the strict scrutiny standard was used to assess the validity of lawsdealin with the reulation of speech, ender, or race as well as other fundamentalrihts, as expansion from its earlier applications to e8ual protection.%

In the cases before it, the Court finds nothin in -ection &2a42#4 that calls for theapplication of the strict scrutiny standard since no fundamental freedom, li"e speech,is involved in punishin what is essentially a condemnable act M accessin thecomputer system of another without riht. It is a universally condemned conduct.&

etitioners of course fear that this section will jeopardie the wor" of ethical hac"ers,professionals who employ tools and techni8ues used by criminal hac"ers but wouldneither damae the taret systems nor steal information. Ethical hac"ers evaluate thetaret system6s security and report bac" to the owners the vulnerabilities they found init and ive instructions for how these can be remedied. Ethical hac"ers are thee8uivalent of independent auditors who come into an oraniation to verify itsboo""eepin records.+

Besides, a client6s enaement of an ethical hac"er re8uires an areement betweenthem as to the extent of the search, the methods to be used, and the systems to betested. 'his is referred to as the 5et out of jail free card.5 7 -ince the ethical hac"er does his job with prior permission from the client, such permission would insulate himfrom the coverae of -ection &2a42#4.

Section +4a54)5 o" the C,&ercrie La!

-ection &2a42%4 provides

-ection &. Cybercrime )ffenses. M 'he followin acts constitute the offenseof cybercrime punishable under this Act


x x x x

2%4 <ata Interference. M 'he intentional or rec"less alteration, damain,deletion or deterioration of computer data, electronic document, or electronicdata messae, without riht, includin the introduction or transmission of viruses.

etitioners claim that -ection &2a42%4 suffers from overbreadth in that, while it see"s todiscourae data interference, it intrudes into the area of protected speech andexpression, creatin a chillin and deterrent effect on these uaranteed freedoms.

nder the overbreadth doctrine, a proper overnmental purpose, constitutionallysubject to state reulation, may not be achieved by means that unnecessarily sweep

its subject broadly, thereby invadin the area of protected freedoms.9 But -ection &2a4

2%4 does not encroach on these freedoms at all. It simply punishes what essentially isa form of vandalism,; the act of willfully destroyin without riht the thins that belonto others, in this case their computer data, electronic document, or electronic datamessae. -uch act has no connection to uaranteed freedoms. 'here is no freedomto destroy other people6s computer systems and private documents.

All penal laws, li"e the cybercrime law, have of course an inherent chillin effect, an interrorem effect? or the fear of possible prosecution that hans on the heads of citienswho are minded to step beyond the boundaries of what is proper. But to prevent the-tate from leislatin criminal laws because they instill such "ind of fear is to render

the state powerless in addressin and penaliin socially harmful conduct.#(

>ere, thechillin effect that results in paralysis is an illusion since -ection &2a42%4 clearlydescribes the evil that it see"s to punish and creates no tendency to intimidate thefree exercise of one6s constitutional rihts.

Besides, the overbreadth challene places on petitioners the heavy burden of provinthat under no set of circumstances will -ection &2a42%4 be valid.## etitioner has failedto dischare this burden.

Section +4a5495 o" the C,&ercrie La!

-ection &2a4274 provides

-ection &. Cybercrime )ffenses. M 'he followin acts constitute the offenseof cybercrime punishable under this Act


x x x x

274 Cyber1s8uattin. M 'he ac8uisition of domain name over the internet inbad faith to profit, mislead, destroy the reputation, and deprive others fromreisterin the same, if such a domain name is

2i4 -imilar, identical, or confusinly similar to an existin trademar"reistered with the appropriate overnment aency at the time of the domain name reistrationL

2ii4 Identical or in any way similar with the name of a person other than the reistrant, in case of a personal nameL and

2iii4 Ac8uired without riht or with intellectual property interests in it.

etitioners claim that -ection &2a4274 or cyber1s8uattin violates the e8ual protectionclause#$ in that, not bein narrowly tailored, it will cause a user usin his real name tosuffer the same fate as those who use aliases or ta"e the name of another in satire,parody, or any other literary device. :or example, supposin there exists a well "nownbillionaire1philanthropist named 5*ulio /andolfo,5 the law would punish for cyber1s8uattin both the person who reisters such name because he claims it to be hispseudo1name and another who reisters the name because it happens to be his realname. etitioners claim that, considerin the substantial distinction between the two,the law should reconie the difference.



cyberspace. In common usae, the term 5favor5 includes 5racious "indness,5 5aspecial privilee or riht ranted or conceded,5 or 5a to"en of love 2as a ribbon4usually worn conspicuously.5$$ 'his meanin iven to the term 5favor5 embracessocially tolerated trysts. 'he law as written would invite law enforcement aencies intothe bedrooms of married couples or consentin individuals.

But the deliberations of the Bicameral Committee of Conress on this section of theCybercrime revention Act ive a proper perspective on the issue. 'hesedeliberations show a lac" of intent to penalie a 5private showin x x x between andamon two private persons x x x althouh that may be a form of obscenity to some.5$%

'he understandin of those who drew up the cybercrime law is that the element of 5enain in a business5 is necessary to constitute the illeal cybersex.$& 'he Actactually see"s to punish cyber prostitution, white slave trade, and pornoraphy for favor and consideration. 'his includes interactive prostitution and pornoraphy, i.e.,by webcam.$+

'he subject of -ection &2c42#4lascivious exhibition of sexual orans or sexualactivityis not novel. Article $(# of the =C punishes 5obscene publications andexhibitions and indecent shows.5 'he Anti1'raffic"in in ersons Act of $((%penalies those who 5maintain or hire a person to enae in prostitution or pornoraphy.5$7 'he law defines prostitution as any act, transaction, scheme, or desin involvin the use of a person by another, for sexual intercourse or lasciviousconduct in exchane for money, profit, or any other consideration.$9

'he case of Noales v. eople$; shows the extent to which the -tate can reulatematerials that serve no other purpose than satisfy the mar"et for violence, lust, or pornoraphy.$? 'he Court weihed the property rihts of individuals aainst the publicwelfare. rivate property, if containin pornoraphic materials, may be forfeited anddestroyed. 3i"ewise, enain in sexual acts privately throuh internet connection,perceived by some as a riht, has to be balanced with the mandate of the -tate toeradicate white slavery and the exploitation of women.

In any event, consentin adults are protected by the wealth of jurisprudencedelineatin the bounds of obscenity.%( 'he Court will not declare -ection &2c42#4unconstitutional where it stands a construction that ma"es it apply only to personsenaed in the business of maintainin, controllin, or operatin, directly or indirectly,the lascivious exhibition of sexual orans or sexual activity with the aid of a computer system as Conress has intended.

Section +4c54'5 o" the C,&ercrie La!

-ection &2c42$4 provides

-ec. &. Cybercrime )ffenses. M 'he followin acts constitute the offense of cybercrime punishable under this Act

x x x x

2c4 Content1related )ffenses

x x x x

2$4 Child ornoraphy. 'he unlawful or prohibited acts defined and

punishable by =epublic Act No. ?99+ or the Anti1Child ornoraphy Act of

$((?, committed throuh a computer system rovided, 'hat the penalty tobe imposed shall be 2#4 one deree hiher than that provided for in =epublic Act No. ?99+.

It seems that the above merely expands the scope of the Anti1Child ornoraphy Actof $((?%# 2ACA4 to cover identical activities in cyberspace. In theory, nothinprevents the overnment from invo"in the ACA when prosecutin persons whocommit child pornoraphy usin a computer system. Actually, ACA6s definition of child pornoraphy already embraces the use of 5electronic, mechanical, diital,optical, manetic or any other means.5 Notably, no one has 8uestioned this ACA

provision.)f course, the law ma"es the penalty hiher by one deree when the crime iscommitted in cyberspace. But no one can complain since the intensity or duration of penalty is a leislative preroative and there is rational basis for such hiher penalty.%$

'he potential for uncontrolled proliferation of a particular piece of child pornoraphywhen uploaded in the cyberspace is incalculable.

etitioners point out that the provision of ACA that ma"es it unlawful for any personto 5produce, direct, manufacture or create any form of child pornoraphy5 %% clearlyrelates to the prosecution of persons who aid and abet the core offenses that ACAsee"s to punish.%& etitioners are wary that a person who merely doodles on paper and imaines a sexual abuse of a #71year1old is not criminally liable for producinchild pornoraphy but one who formulates the idea on his laptop would be. :urther, if

the author bounces off his ideas on 'witter, anyone who replies to the tweet could beconsidered aidin and abettin a cybercrime.

'he 8uestion of aidin and abettin the offense by simply commentin on it will bediscussed elsewhere below. :or now the Court must hold that the constitutionality of -ection &2c42$4 is not successfully challened.

Section +4c54)5 o" the C,&ercrie La!

-ection &2c42%4 provides

-ec. &. Cybercrime )ffenses. M 'he followin acts constitute the offense of cybercrime punishable under this Act

x x x x


x x x x

2%4 nsolicited Commercial Communications. M 'he transmission of commercial electronic communication with the use of computer systemwhich see"s to advertise, sell, or offer for sale products and services areprohibited unless

2i4 'here is prior affirmative consent from the recipientL or

2ii4 'he primary intent of the communication is for service andDor administrative announcements from the sender to its existin users,

subscribers or customersL or



2iii4 'he followin conditions are present

2aa4 'he commercial electronic communication contains asimple, valid, and reliable way for the recipient to rejectreceipt of further commercial electronic messaes 2opt1out4 from the same sourceL

2bb4 'he commercial electronic communication does notpurposely disuise the source of the electronic messaeLand

2cc4 'he commercial electronic communication does notpurposely include misleadin information in any part of themessae in order to induce the recipients to read themessae.

'he above penalies the transmission of unsolicited commercial communications,also "nown as 5spam.5 'he term 5spam5 surfaced in early internet chat rooms andinteractive fantasy ames. )ne who repeats the same sentence or comment was saidto be ma"in a 5spam.5 'he term referred to a 0onty ython6s :lyin Circus scene inwhich actors would "eep sayin 5-pam, -pam, -pam, and -pam5 when readinoptions from a menu.%+

'he /overnment, represented by the -olicitor /eneral, points out that unsolicitedcommercial communications or spams are a nuisance that wastes the storae and

networ" capacities of internet service providers, reduces the efficiency of commerceand technoloy, and interferes with the owner6s peaceful enjoyment of his property.'ransmittin spams amounts to trespass to one6s privacy since the person sendinout spams enters the recipient6s domain without prior permission. 'he )-/ contendsthat commercial speech enjoys less protection in law.

But, firstly, the overnment presents no basis for holdin that unsolicited electronicads reduce the 5efficiency of computers.5 -econdly, people, before the arrival of theae of computers, have already been receivin such unsolicited ads by mail. 'hesehave never been outlawed as nuisance since people miht have interest in such ads.!hat matters is that the recipient has the option of not openin or readin these mailads. 'hat is true with spams. 'heir recipients always have the option to delete or notto read them.

'o prohibit the transmission of unsolicited ads would deny a person the riht to readhis emails, even unsolicited commercial ads addressed to him. Commercial speech isa separate cateory of speech which is not accorded the same level of protection asthat iven to other constitutionally uaranteed forms of expression but is nonethelessentitled to protection.%7 'he -tate cannot rob him of this riht without violatin theconstitutionally uaranteed freedom of expression. nsolicited advertisements areleitimate forms of expression.

Articles ))$ )+$ and ) o" the Penal Code

Section +4c54+5 o" the C,&er Crie La!

etitioners dispute the constitutionality of both the penal code provisions on libel aswell as -ection &2c42&4 of the Cybercrime revention Act on cyberlibel.

'he =C provisions on libel read

Art. %+%. <efinition of libel. A libel is public and malicious imputation of acrime, or of a vice or defect, real or imainary, or any act, omission,condition, status, or circumstance tendin to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blac"en the memory of onewho is dead.

Art. %+&. =e8uirement for publicity. Every defamatory imputation ispresumed to be malicious, even if it be true, if no ood intention and justifiable motive for ma"in it is shown, except in the followin cases

#. A private communication made by any person to another in theperformance of any leal, moral or social dutyL and

$. A fair and true report, made in ood faith, without any commentsor remar"s, of any judicial, leislative or other official proceedinswhich are not of confidential nature, or of any statement, report or speech delivered in said proceedins, or of any other act performedby public officers in the exercise of their functions.

Art. %++. 3ibel means by writins or similar means. A libel committed bymeans of writin, printin, lithoraphy, enravin, radio, phonoraph,paintin, theatrical exhibition, cinematoraphic exhibition, or any similar means, shall be punished by prision correccional in its minimum and

medium periods or a fine ranin from $(( to 7,((( pesos, or both, inaddition to the civil action which may be brouht by the offended party.

'he libel provision of the cybercrime law, on the other hand, merely incorporates toform part of it the provisions of the =C on libel. 'hus -ection &2c42&4 reads

-ec. &. Cybercrime )ffenses. 'he followin acts constitute the offense of cybercrime punishable under this Act

x x x x


x x x x

2&4 3ibel. 'he unlawful or prohibited acts of libel as defined in Article %++of the =evised enal Code, as amended, committed throuh a computer system or any other similar means which may be devised in the future.

etitioners lament that libel provisions of the penal code%9 and, in effect, the libelprovisions of the cybercrime law carry with them the re8uirement of 5presumedmalice5 even when the latest jurisprudence already replaces it with the hiher standard of 5actual malice5 as a basis for conviction. %; etitioners arue that inferrin5presumed malice5 from the accused6s defamatory statement by virtue of Article %+&of the penal code infrines on his constitutionally uaranteed freedom of expression.

etitioners would o further. 'hey contend that the laws on libel should be stric"endown as unconstitutional for otherwise ood jurisprudence re8uirin 5actual malice5

could easily be overturned as the Court has done in :ermin v. eople

%?

even wherethe offended parties happened to be public fiures.



'he elements of libel are 2a4 the alleation of a discreditable act or conditionconcernin anotherL 2b4 publication of the chareL 2c4 identity of the person defamedLand 2d4 existence of malice.&(

'here is 5actual malice5 or malice in fact&# when the offender ma"es the defamatorystatement with the "nowlede that it is false or with rec"less disreard of whether itwas false or not.&$ 'he rec"less disreard standard used here re8uires a hih dereeof awareness of probable falsity. 'here must be sufficient evidence to permit theconclusion that the accused in fact entertained serious doubts as to the truth of thestatement he published. /ross or even extreme nelience is not sufficient to

establish actual malice.&%

'he prosecution bears the burden of provin the presence of actual malice ininstances where such element is re8uired to establish uilt. 'he defense of absenceof actual malice, even when the statement turns out to be false, is available where theoffended party is a public official or a public fiure, as in the cases of as8ue 2abaranay official4 and Borjal 2the Executive <irector, :irst National Conference on3and 'ransportation4. -ince the penal code and implicitly, the cybercrime law, mainlytaret libel aainst private persons, the Court reconies that these laws imply astricter standard of 5malice5 to convict the author of a defamatory statement where theoffended party is a public fiure. -ociety6s interest and the maintenance of oodovernment demand a full discussion of public affairs.&&

arenthetically, the Court cannot accept the proposition that its rulin in :ermin

disrearded the hiher standard of actual malice or malice in fact when it foundCristinelli :ermin uilty of committin libel aainst complainants who were publicfiures. Actually, the Court found the presence of malice in fact in that case. 'hus

It can be leaned from her testimony that petitioner had the motive to ma"edefamatory imputations aainst complainants. 'hus, petitioner cannot, bysimply ma"in a eneral denial, convince us that there was no malice on her part. erily, #o( o#y 7a% ($ere +a"&e "# a7 , the article bein malicious initself, bu( ($ere 7a% a%o +a"&e "# )a&(, as there was motive to tal" illaainst complainants durin the electoral campain. 2Emphasis ours4

Indeed, the Court too" into account the relatively wide leeway iven to utterancesaainst public fiures in the above case, cinema and television personalities, when itmodified the penalty of imprisonment to just a fine of 7,(((.((.

But, where the offended party is a private individual, the prosecution need not provethe presence of malice. 'he law explicitly presumes its existence 2malice in law4 fromthe defamatory character of the assailed statement.&+ :or his defense, the accusedmust show that he has a justifiable reason for the defamatory statement even if it wasin fact true.&7

etitioners peddle the view that both the penal code and the Cybercrime revention Act violate the country6s obliations under the International Covenant of Civil andolitical =ihts 2ICC=4. 'hey point out that in Adonis v. =epublic of the hilippines,&9

the nited Nations >uman =ihts Committee 2N>=C4 cited its /eneral Comment%& to the effect that penal defamation laws should include the defense of truth.

But /eneral Comment %& does not say that the truth of the defamatory statement

should constitute an all1encompassin defense. As it happens, Article %7# reconies

truth as a defense but under the condition that the accused has been prompted inma"in the statement by ood motives and for justifiable ends. 'hus

Art. %7#. roof of the truth. In every criminal prosecution for libel, the truthmay be iven in evidence to the court and if it appears that the matter chared as libelous is true, and, moreover, that it was published with oodmotives and for justifiable ends, the defendants shall be ac8uitted.

roof of the truth of an imputation of an act or omission not constitutin acrime shall not be admitted, unless the imputation shall have been madeaainst /overnment employees with respect to facts related to the dischareof their official duties.

In such cases if the defendant proves the truth of the imputation made byhim, he shall be ac8uitted.

Besides, the N>=C did not actually enjoin the hilippines, as petitioners ure, todecriminalie libel. It simply suested that defamation laws be crafted with care toensure that they do not stifle freedom of expression.&; Indeed, the ICC= states thatalthouh everyone should enjoy freedom of expression, its exercise carries with itspecial duties and responsibilities. :ree speech is not absolute. It is subject to certainrestrictions, as may be necessary and as may be provided by law.&?

'he Court arees with the -olicitor /eneral that libel is not a constitutionally protectedspeech and that the overnment has an obliation to protect private individuals from

defamation. Indeed, cyberlibel is actually not a new crime since Article %+%, in relationto Article %++ of the penal code, already punishes it. In effect, -ection &2c42&4 abovemerely affirms that online defamation constitutes 5similar means5 for committin libel.

But the Court6s ac8uiescence oes only insofar as the cybercrime law penalies theauthor of the libelous statement or article. Cyberlibel brins with it certain intricacies,unheard of when the penal code provisions on libel were enacted. 'he cultureassociated with internet media is distinct from that of print.

'he internet is characteried as encourain a freewheelin, anythin1oes writinstyle.+( In a sense, they are a world apart in terms of 8uic"ness of the reader6sreaction to defamatory statements posted in cyberspace, facilitated by one1clic" replyoptions offered by the networ"in site as well as by the speed with which suchreactions are disseminated down the line to other internet users. !hether thesereactions to defamatory statement posted on the internet constitute aidin andabettin libel, acts that -ection + of the cybercrime law punishes, is another matter that the Court will deal with next in relation to -ection + of the law.

Section o" the C,&ercrie La!

-ection + provides

-ec. +. )ther )ffenses. 'he followin acts shall also constitute anoffense

2a4 Aidin or Abettin in the Commission of Cybercrime. M Any person whowillfully abets or aids in the commission of any of the offenses enumerated inthis Act shall be held liable.



2b4 Attempt in the Commission of Cybercrime. Any person who willfullyattempts to commit any of the offenses enumerated in this Act shall be heldliable.

etitioners assail the constitutionality of -ection + that renders criminally liable anyperson who willfully abets or aids in the commission or attempts to commit any of theoffenses enumerated as cybercrimes. It suffers from overbreadth, creatin a chillinand deterrent effect on protected expression.

'he -olicitor /eneral contends, however, that the current body of jurisprudence andlaws on aidin and abettin sufficiently protects the freedom of expression of 5netiens,5 the multitude that avail themselves of the services of the internet. >epoints out that existin laws and jurisprudence sufficiently delineate the meanin of 5aidin or abettin5 a crime as to protect the innocent. 'he -olicitor /eneral aruesthat plain, ordinary, and common usae is at times sufficient to uide law enforcementaencies in enforcin the law.+# 'he leislature is not re8uired to define every sinleword contained in the laws they craft.

Aidin or abettin has of course well1defined meanin and application in existinlaws. !hen a person aids or abets another in destroyin a forest,+$ smulinmerchandise into the country,+% or interferin in the peaceful pic"etin of laborers, +&

his action is essentially physical and so is susceptible to easy assessment as criminalin character. 'hese forms of aidin or abettin lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of siht is somewhat blurred. 'he idea of 5aidin or abettin5 wrondoins onlinethreatens the heretofore popular and unchallened domas of cyberspace use.

Accordin to the $(## -outheast Asia <iital Consumer =eport, %%V of :ilipinos haveaccessed the internet within a year, translatin to about %# million users.++ Based on arecent survey, the hilippines ran"s 7th in the top #( most enaed countries for social networ"in.+7 -ocial networ"in sites build social relations amon people who,for example, share interests, activities, bac"rounds, or real1life connections.+9

'wo of the most popular of these sites are :aceboo" and 'witter. As of late $(#$, #.$billion people with shared interests use :aceboo" to et in touch.+; sers reister atthis site, create a personal profile or an open boo" of who they are, add other users

as friends, and exchane messaes, includin automatic notifications when theyupdate their profile.+? A user can post a statement, a photo, or a video on :aceboo",which can be made visible to anyone, dependin on the user6s privacy settins.

If the post is made available to the public, meanin to everyone and not only to hisfriends, anyone on :aceboo" can react to the postin, clic"in any of several buttonsof preferences on the proram6s screen such as 53i"e,5 5Comment,5 or 5-hare.5 53i"e5sinifies that the reader li"es the postin while 5Comment5 enables him to post onlinehis feelins or views about the same, such as 5'his is reatY5 !hen a :aceboo" user 5-hares5 a postin, the oriinal 5postin5 will appear on his own :aceboo" profile,conse8uently ma"in it visible to his down1line :aceboo" :riends.

'witter, on the other hand, is an internet social networ"in and microbloin servicethat enables its users to send and read short text1based messaes of up to #&(

characters. 'hese are "nown as 5'weets.5 0icrobloin is the practice of postin

small pieces of diital contentwhich could be in the form of text, pictures, lin"s,short videos, or other mediaon the internet. Instead of friends, a 'witter user has5:ollowers,5 those who subscribe to this particular user6s posts, enablin them to readthe same, and 5:ollowin,5 those whom this particular user is subscribed to, enablinhim to read their posts. 3i"e :aceboo", a 'witter user can ma"e his tweets availableonly to his :ollowers, or to the eneral public. If a post is available to the public, any'witter user can 5=etweet5 a iven postin. =etweetin is just repostin or republishin another person6s tweet without the need of copyin and pastin it.

In the cyberworld, there are many actors a4 the bloer who oriinates the assailed

statementL b4 the blo service provider li"e PahooL c4 the internet service provider li"e3<', -mart, /lobe, or -unL d4 the internet cafZ that may have provided thecomputer used for postin the bloL e4 the person who ma"es a favorable commenton the bloL and f4 the person who posts a lin" to the blo site. 7( Now, suppose 0aria2a bloer4 maintains a blo on !ordress.com 2blo service provider4. -he needsthe internet to access her blo so she subscribes to -un Broadband 2Internet -ervicerovider4.

)ne day, 0aria posts on her internet account the statement that a certain marriedpublic official has an illicit affair with a movie star. 3inda, one of 0aria6s friends whosees this post, comments online, 5Pes, this is so trueY 'hey are so immoral.5 0aria6soriinal post is then multiplied by her friends and the latter6s f riends, and down the lineto friends of friends almost ad infinitum. Nena, who is a straner to both 0aria and3inda, comes across this blo, finds it interestin and so shares the lin" to this

apparently defamatory blo on her 'witter account. Nena6s 5:ollowers5 then 5=etweet5the lin" to that blo site.

amela, a 'witter user, stumbles upon a random person6s 5=etweet5 of Nena6soriinal tweet and posts this on her :aceboo" account. Immediately, amela6s:aceboo" :riends start 3i"in and ma"in Comments on the assailed postin. A lot of them even press the -hare button, resultin in the further spread of the oriinalpostin into tens, hundreds, thousands, and reater postins.

'he 8uestion is are online postins such as 53i"in5 an openly defamatory statement,5Commentin5 on it, or 5-harin5 it with others, to be rearded as 5aidin or abettinS5In libel in the physical world, if Nestor places on the office bulletin board a smallposter that says, 5Armand is a thiefY,5 he could certainly be chared with libel. If =oer, seein the poster, writes on it, 5I li"e thisY,5 that could not be libel since he did

not author the poster. If Arthur, passin by and noticin the poster, writes on it,5CorrectY,5 would that be libelS No, for he merely expresses areement with thestatement on the poster. >e still is not its author. Besides, it is not clear if aidin or abettin libel in the physical world is a crime.

But suppose Nestor posts the blo, 5Armand is a thiefY5 on a social networ"in site.!ould a reader and his :riends or :ollowers, availin themselves of any of the 53i"e,55Comment,5 and 5-hare5 reactions, be uilty of aidin or abettin libelS And, in thecomplex world of cyberspace expressions of thouhts, when will one be liable for aidin or abettin cybercrimesS !here is the venue of the crimeS

Except for the oriinal author of the assailed statement, the rest 2those who pressed3i"e, Comment and -hare4 are essentially "nee1jer" sentiments of readers who maythin" little or haphaardly of their response to the oriinal postin. !ill they be liable

for aidin or abettinS And, considerin the inherent impossibility of joinin hundreds



or thousands of respondin 5:riends5 or 5:ollowers5 in the criminal chare to be filedin court, who will ma"e a choice as to who should o to jail for the outbrea" of thechallened postinS

'he old parameters for enforcin the traditional form of libel would be a s8uare pe ina round hole when applied to cyberspace libel. nless the leislature crafts a cyber libel law that ta"es into account its uni8ue circumstances and culture, such law willtend to create a chillin effect on the millions that use this new medium of communication in violation of their constitutionally1uaranteed riht to freedom of expression.

'he nited -tates -upreme Court faced the same issue in =eno v. American Civil3iberties nion,7# a case involvin the constitutionality of the Communications<ecency Act of #??7. 'he law prohibited 2#4 the "nowin transmission, by means of atelecommunications device, of 5obscene or indecent5 communications to any recipientunder #; years of aeL and 2$4 the "nowin use of an interactive computer service tosend to a specific person or persons under #; years of ae or to display in a manner available to a person under #; years of ae communications that, in context, depict or describe, in terms 5patently offensive5 as measured by contemporary communitystandards, sexual or excretory activities or orans.

'hose who challened the Act claim that the law violated the :irst Amendment6suarantee of freedom of speech for bein overbroad. 'he .-. -upreme Courtareed and ruled

'he vaueness of the Communications <ecency Act of #??7 2C<A4, &9.-.C.-. R$$%, is a matter of special concern for two reasons. :irst, the C<Ais a content1based reulation of speech. 'he ;a9ue#e%% o) %u&$ are9ua("o# raises special .-. Const. amend. I concerns because of itsob;"ou% &$""#9 e))e&( o# )ree %'ee&$. -econd, the C<A is a criminalstatute. In addition to the opprobrium and stima of a criminal conviction, theC<A threatens violators with penalties includin up to two years in prison for each act of violation. /$e %e;er"(y o) &r"+"#a %a#&("o#% +ay 7e &au%e%'ea?er% (o re+a"# %"e#( ra($er ($a# &o++u#"&a(e e;e# ar9uabyu#a7)u 7or%, "ea%, a# "+a9e%. As a practical matter, this increaseddeterrent effect, coupled with the ris" of discriminatory enforcement of vauereulations, poses reater .-. Const. amend. I concerns than thoseimplicated by certain civil reulations.

x x x x

'he Communications <ecency Act of #??7 2C<A4, &9 .-.C.-. R $$%,'re%e#(% a 9rea( ($rea( o) &e#%or"#9 %'ee&$ ($a(, "# )a&(, )a% ou(%"e($e %(a(u(e% %&o'e. G";e# ($e ;a9ue &o#(our% o) ($e &o;era9e o) ($e%(a(u(e, "( u#4ue%("o#aby %"e#&e% %o+e %'ea?er% 7$o%e +e%%a9e%7ou be e#("(e (o &o#%("(u("o#a 'ro(e&("o#. 'hat daner providesfurther reason for insistin that the statute not be overly broad. /$e C*AQ%bure# o# 'ro(e&(e %'ee&$ &a##o( be :u%(")"e ") "( &ou be a;o"eby a +ore &are)uy ra)(e %(a(u(e. 2Emphasis ours4

3ibel in the cyberspace can of course stain a person6s imae with just one clic" of themouse. -currilous statements can spread and travel fast across the lobe li"e bad

news. 0oreover, cyberlibel often oes hand in hand with cyberbullyin that oppresses

the victim, his relatives, and friends, evo"in from mild to disastrous reactions. -till, aovernmental purpose, which see"s to reulate the use of this cyberspacecommunication technoloy to protect a person6s reputation and peace of mind, cannotadopt means that will unnecessarily and broadly sweep, invadin the area of protected freedoms.7$

If such means are adopted, self1inhibition borne of fear of what sinister predicamentsawait internet users will suppress otherwise robust discussion of public issues.<emocracy will be threatened and with it, all liberties. enal laws should providereasonably clear uidelines for law enforcement officials and triers of facts to prevent

arbitrary and discriminatory enforcement.

7%

'he terms 5aidin or abettin5 constitutebroad sweep that enerates chillin effect on those who express themselves throuhcyberspace posts, comments, and other messaes.7& >ence, -ection + of thecybercrime law that punishes 5aidin or abettin5 libel on the cyberspace is a nullity.

!hen a penal statute encroaches upon the freedom of speech, a facial challenerounded on the void1for1vaueness doctrine is acceptable. 'he inapplicability of thedoctrine must be carefully delineated. As *ustice Antonio '. Carpio explained in hisdissent in =omualde v. Commission on Elections,7+ 5we must view these statementsof the Court on the inapplicability of the overbreadth and vaueness doctrines topenal statutes as appropriate only insofar as these doctrines are used to mountfacial6 challenes to penal statutes not involvin free speech.5

In an 5as applied5 challene, the petitioner who claims a violation of his constitutional

riht can raise any constitutional round M absence of due process, lac" of fair notice,lac" of ascertainable standards, overbreadth, or vaueness. >ere, one can challenethe constitutionality of a statute only if he asserts a violation of his own rihts. Itprohibits one from assailin the constitutionality of the statute based solely on theviolation of the rihts of third persons not before the court. 'his rule is also "nown asthe prohibition aainst third1party standin.77

But this rule admits of exceptions. A petitioner may for instance mount a 5facial5challene to the constitutionality of a statute even if he claims no violation of his ownrihts under the assailed statute where it involves free speech on rounds of overbreadth or vaueness of the statute.

'he rationale for this exception is to counter the 5chillin effect5 on protected speechthat comes from statutes violatin free speech. A person who does not "now whether

his speech constitutes a crime under an overbroad or vaue law may simply restrainhimself from spea"in in order to avoid bein chared of a crime. 'he overbroad or vaue law thus chills him into silence.79

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any overnment threat of punishment reardincertain uses of the medium creates a chillin effect on the constitutionally1protectedfreedom of expression of the reat masses that use it. In this case, the particularlycomplex web of interaction on social media websites would ive law enforcers suchlatitude that they could arbitrarily or selectively enforce the law.



!ho is to decide when to prosecute persons who boost the visibility of a postin onthe internet by li"in itS Netiens are not iven 5fair notice5 or warnin as to what iscriminal conduct and what is lawful conduct. !hen a case is filed, how will the courtascertain whether or not one netien6s comment aided and abetted a cybercrimewhile another comment did notS

)f course, if the 5Comment5 does not merely react to the oriinal postin but createsan altoether new defamatory story aainst Armand li"e 5>e beats his wife andchildren,5 then that should be considered an oriinal postin published on the internet.Both the penal code and the cybercrime law clearly punish authors of defamatory

publications. 0a"e no mista"e, libel destroys reputations that society values. Allowedto cascade in the internet, it will destroy relationships and, under certaincircumstances, will enerate enmity and tension between social or economic roups,races, or reliions, exacerbatin existin tension in their relationships.

In reard to the crime that tarets child pornoraphy, when 5/oole procures, stores,and indexes child pornoraphy and facilitates the completion of transactions involvinthe dissemination of child pornoraphy,5 does this ma"e /oole and its users aidersand abettors in the commission of child pornoraphy crimesS 7; Byars hihlihts afeature in the American law on child pornoraphy that the Cybercrimes law lac"stheexemption of a provider or notably a plain user of interactive computer service fromcivil liability for child pornoraphy as follows

No provider or user of an interactive computer service shall be treated as the

publisher or spea"er of any information provided by another informationcontent provider and cannot be held civilly liable for any action voluntarilyta"en in ood faith to restrict access to or availability of material that theprovider or user considers to be obscene...whether or not such material isconstitutionally protected.7?

!hen a person replies to a 'weet containin child pornoraphy, he effectivelyrepublishes it whether wittinly or unwittinly. <oes this ma"e him a willinaccomplice to the distribution of child pornoraphyS !hen a user downloads the:aceboo" mobile application, the user may ive consent to :aceboo" to access hiscontact details. In this way, certain information is forwarded to third parties andunsolicited commercial communication could be disseminated on the basis of thisinformation.9( As the source of this information, is the user aidin the distribution of this communicationS 'he leislature needs to address this clearly to relieve users of

annoyin fear of possible criminal prosecution.

-ection + with respect to -ection &2c42&4 is unconstitutional. Its vaueness raisesapprehension on the part of internet users because of its obvious chillin effect on thefreedom of expression, especially since the crime of aidin or abettin ensnares allthe actors in the cyberspace front in a fuy way. !hat is more, as the petitionerspoint out, formal crimes such as libel are not punishable unless consummated. 9# Inthe absence of leislation tracin the interaction of netiens and their level of responsibility such as in other countries, -ection +, in relation to -ection &2c42&4 on3ibel, -ection &2c42%4 on nsolicited Commercial Communications, and -ection &2c42$4 on Child ornoraphy, cannot stand scrutiny.

But the crime of aidin or abettin the commission of cybercrimes under -ection +should be permitted to apply to -ection &2a42#4 on Illeal Access, -ection &2a42$4 on

Illeal Interception, -ection &2a42%4 on <ata Interference, -ection &2a42&4 on -ystem

Interference, -ection &2a42+4 on 0isuse of <evices, -ection &2a4274 on Cyber1s8uattin, -ection &2b42#4 on Computer1related :orery, -ection &2b42$4 on Computer1related :raud, -ection &2b42%4 on Computer1related Identity 'heft, and -ection &2c42#4on Cybersex. None of these offenses borders on the exercise of the freedom of expression.

'he crime of willfully attemptin to commit any of these offenses is for the samereason not objectionable. A hac"er may for instance have done all that is necessaryto illeally access another party6s computer system but the security employed by thesystem6s lawful owner could frustrate his effort. Another hac"er may have ained

access to usernames and passwords of others but fail to use these because thesystem supervisor is alerted.9$ If -ection + that punishes any person who willfullyattempts to commit this specific offense is not upheld, the owner of the username andpassword could not file a complaint aainst him for attempted hac"in. But this is notriht. 'he hac"er should not be freed from liability simply because of the viilance of alawful owner or his supervisor.

etitioners of course claim that -ection + lac"s positive limits and could cover theinnocent.9% !hile this may be true with respect to cybercrimes that tend to snea" pastthe area of free expression, any attempt to commit the other acts specified in -ection&2a42#4, -ection &2a42$4, -ection &2a42%4, -ection &2a42&4, -ection &2a42+4, -ection &2a4274, -ection &2b42#4, -ection &2b42$4, -ection &2b42%4, and -ection &2c42#4 as well asthe actors aidin and abettin the commission of such acts can be identified withsome reasonable certainty throuh adroit trac"in of their wor"s. Absent concrete

proof of the same, the innocent will of course be spared.

Section 9 o" the C,&ercrie La!

-ection 7 provides

-ec. 7. All crimes defined and penalied by the =evised enal Code, asamended, and special laws, if committed by, throuh and with the use of information and communications technoloies shall be covered by therelevant provisions of this Act rovided, 'hat the penalty to be imposedshall be one 2#4 deree hiher than that provided for by the =evised enalCode, as amended, and special laws, as the case may be.

-ection 7 merely ma"es commission of existin crimes throuh the internet a

8ualifyin circumstance. As the -olicitor /eneral points out, there exists a substantialdistinction between crimes committed throuh the use of information andcommunications technoloy and similar crimes committed usin other means. Inusin the technoloy in 8uestion, the offender often evades identification and is ableto reach far more victims or cause reater harm. 'he distinction, therefore, creates abasis for hiher penalties for cybercrimes.

Section o" the C,&ercrie La!

-ection 9 provides

-ec. 9. 3iability under )ther 3aws. A prosecution under this Act shall bewithout prejudice to any liability for violation of any provision of the =evisedenal Code, as amended, or special laws.



'he -olicitor /eneral points out that -ection 9 merely expresses the settled doctrinethat a sinle set of acts may be prosecuted and penalied simultaneously under twolaws, a special law and the =evised enal Code. !hen two different laws define twocrimes, prior jeopardy as to one does not bar prosecution of the other althouh bothoffenses arise from the same fact, if each crime involves some important act which isnot an essential element of the other.9& !ith the exception of the crimes of online libeland online child pornoraphy, the Court would rather leave the determination of thecorrect application of -ection 9 to actual cases.

)nline libel is different. 'here should be no 8uestion that if the published material on

print, said to be libelous, is aain posted online or vice versa, that identical materialcannot be the subject of two separate libels. 'he two offenses, one a violation of Article %+% of the =evised enal Code and the other a violation of -ection &2c42&4 of =.A. #(#9+ involve essentially the same elements and are in fact one and the sameoffense. Indeed, the )-/ itself claims that online libel under -ection &2c42&4 is not anew crime but is one already punished under Article %+%. -ection &2c42&4 merelyestablishes the computer system as another means of publication.9+ Charin theoffender under both laws would be a blatant violation of the proscription aainstdouble jeopardy.97

'he same is true with child pornoraphy committed online. -ection &2c42$4 merelyexpands the ACA6s scope so as to include identical activities in cyberspace. Aspreviously discussed, ACA6s definition of child pornoraphy in fact already covers theuse of 5electronic, mechanical, diital, optical, manetic or any other means.5 'hus,

charin the offender under both -ection &2c42$4 and ACA would li"ewise betantamount to a violation of the constitutional prohibition aainst double jeopardy.

Section ; o" the C,&ercrie La!

-ection ; provides

-ec. ;. enalties. Any person found uilty of any of the punishable actsenumerated in -ections &2a4 and &2b4 of this Act shall be punished withimprisonment of prision mayor or a fine of at least 'wo hundred thousandpesos 2h$((,(((.((4 up to a maximum amount commensurate to thedamae incurred or both.

Any person found uilty of the punishable act under -ection &2a42+4 shall be

punished with imprisonment of prision mayor or a fine of not more than :ivehundred thousand pesos 2h+((,(((.((4 or both.

If punishable acts in -ection &2a4 are committed aainst criticalinfrastructure, the penalty of reclusion temporal or a fine of at least :ivehundred thousand pesos 2h+((,(((.((4 up to maximum amountcommensurate to the damae incurred or both, shall be imposed.

Any person found uilty of any of the punishable acts enumerated in -ection&2c42#4 of this Act shall be punished with imprisonment of prision mayor or afine of at least 'wo hundred thousand pesos 2h$((,(((.((4 but notexceedin )ne million pesos 2h#,(((,(((.((4 or both.

Any person found uilty of any of the punishable acts enumerated in -ection&2c42$4 of this Act shall be punished with the penalties as enumerated in=epublic Act No. ?99+ or the 5Anti1Child ornoraphy Act of $((?5

rovided, 'hat the penalty to be imposed shall be one 2#4 deree hiher than that provided for in =epublic Act No. ?99+, if committed throuh acomputer system.

Any person found uilty of any of the punishable acts enumerated in -ection&2c42%4 shall be punished with imprisonment of arresto mayor or a fine of atleast :ifty thousand pesos 2h+(,(((.((4 but not exceedin 'wo hundredfifty thousand pesos 2h$+(,(((.((4 or both.

Any person found uilty of any of the punishable acts enumerated in -ection+ shall be punished with imprisonment one 2#4 deree lower than that of theprescribed penalty for the offense or a fine of at least )ne hundred thousandpesos 2h#((,(((.((4 but not exceedin :ive hundred thousand pesos2h+((,(((.((4 or both.

-ection ; provides for the penalties for the followin crimes -ections &2a4 on)ffenses Aainst the Confidentiality, Interity and Availability of Computer <ata and-ystemsL &2b4 on Computer1related )ffensesL &2a42+4 on 0isuse of <evicesL when thecrime punishable under &2a4 is committed aainst critical infrastructureL &2c42#4 onCybersexL &2c42$4 on Child ornoraphyL &2c42%4 on nsolicited CommercialCommunicationsL and -ection + on Aidin or Abettin, and Attempt in the Commissionof Cybercrime.

'he matter of fixin penalties for the commission of crimes is as a rule a leislativepreroative. >ere the leislature prescribed a measure of severe penalties for what itreards as deleterious cybercrimes. 'hey appear proportionate to the evil souht tobe punished. 'he power to determine penalties for offenses is not diluted or improperly wielded simply because at some prior time the act or omission was but anelement of another offense or miht just have been connected with another crime. 99

*udes and maistrates can only interpret and apply them and have no authority tomodify or revise their rane as determined by the leislative department.

'he courts should not encroach on this preroative of the lawma"in body.9;

Section %' o" the C,&ercrie La!

-ection #$ provides

-ec. #$. =eal1'ime Collection of 'raffic <ata. 3aw enforcement

authorities, with due cause, shall be authoried to collect or record bytechnical or electronic means traffic data in real1time associated withspecified communications transmitted by means of a computer system.

'raffic data refer only to the communication6s oriin, destination, route, time,date, sie, duration, or type of underlyin service, but not content, nor identities.

All other data to be collected or seied or disclosed will re8uire a courtwarrant.

-ervice providers are re8uired to cooperate and assist law enforcementauthorities in the collection or recordin of the above1stated information.



'he court warrant re8uired under this section shall only be issued or rantedupon written application and the examination under oath or affirmation of theapplicant and the witnesses he may produce and the showin 2#4 that thereare reasonable rounds to believe that any of the crimes enumeratedhereinabove has been committed, or is bein committed, or is about to becommittedL 2$4 that there are reasonable rounds to believe that evidencethat will be obtained is essential to the conviction of any person for, or to thesolution of, or to the prevention of, any such crimesL and 2%4 that there are noother means readily available for obtainin such evidence.

etitioners assail the rant to law enforcement aencies of the power to collect or record traffic data in real time as tendin to curtail civil liberties or provideopportunities for official abuse. 'hey claim that data showin where diital messaescome from, what "ind they are, and where they are destined need not beincriminatin to their senders or recipients before they are to be protected. etitionersinvo"e the riht of every individual to privacy and to be protected from overnmentsnoopin into the messaes or information that they send to one another.

'he first 8uestion is whether or not -ection #$ has a proper overnmental purposesince a law may re8uire the disclosure of matters normally considered private butthen only upon showin that such re8uirement has a rational relation to the purposeof the law,9? that there is a compellin -tate interest behind the law, and that theprovision itself is narrowly drawn.;( In assessin reulations affectin privacy rihts,courts should balance the leitimate concerns of the -tate aainst constitutional

uarantees.;#

ndoubtedly, the -tate has a compellin interest in enactin the cybercrime law for there is a need to put order to the tremendous activities in cyberspace for publicood.;$ 'o do this, it is within the realm of reason that the overnment should be ableto monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter I of the cybercrime law, of which the collection or recordin of traffic data isa part, aims to provide law enforcement authorities with the power they need for spottin, preventin, and investiatin crimes committed in cyberspace. Crime1fihtin is a state business. Indeed, as Chief *ustice -ereno points out, the BudapestConvention on Cybercrimes re8uires sinatory countries to adopt leislativemeasures to empower state authorities to collect or record 5traffic data, in real time,associated with specified communications.5;% And this is precisely what -ection #$

does. It empowers law enforcement aencies in this country to collect or record suchdata.

But is not evidence of yesterday6s traffic data, li"e the scene of the crime after it hasbeen committed, ade8uate for fihtin cybercrimes and, therefore, real1time data issuperfluous for that purposeS Evidently, it is not. 'hose who commit the crimes of accessin a computer system without riht,;& transmittin viruses,;+ lasciviouslyexhibitin sexual orans or sexual activity for favor or considerationL;7 and producinchild pornoraphy;9 could easily evade detection and prosecution by simply movinthe physical location of their computers or laptops from day to day. In this diital ae,the wic"ed can commit cybercrimes from virtually anywhere from internet cafZs, from"indred places that provide free internet services, and from unreistered mobileinternet connectors. Criminals usin cellphones under pre1paid arranements andwith unreistered -I0 cards do not have listed addresses and can neither be locatednor identified. 'here are many ways the cyber criminals can 8uic"ly erase their trac"s.

'hose who peddle child pornoraphy could use relays of computers to mislead lawenforcement authorities reardin their places of operations. Evidently, it is only real1time traffic data collection or recordin and a subse8uent recourse to court1issuedsearch and seiure warrant that can succeed in ferretin them out.

etitioners of course point out that the provisions of -ection #$ are too broad and donot provide ample safeuards aainst crossin leal boundaries and invadin thepeople6s riht to privacy. 'he concern is understandable. Indeed, the Courtreconies in 0orfe v. 0utuc;; that certain constitutional uarantees wor" toether tocreate ones of privacy wherein overnmental powers may not intrude, and that there

exists an independent constitutional riht of privacy. -uch riht to be left alone hasbeen rearded as the beinnin of all freedoms.;?

But that riht is not un8ualified. In !halen v. =oe, ?( the nited -tates -upreme Courtclassified privacy into two cateories decisional privacy and informational privacy.<ecisional privacy involves the riht to independence in ma"in certain importantdecisions, while informational privacy refers to the interest in avoidin disclosure of personal matters. It is the latter rihtthe riht to informational privacythat thosewho oppose overnment collection or recordin of traffic data in real1time see" toprotect.

Informational privacy has two aspects the riht not to have private informationdisclosed, and the riht to live freely without surveillance and intrusion.?# Indeterminin whether or not a matter is entitled to the riht to privacy, this Court has

laid down a two1fold test. 'he first is a subjective test, where one claimin the rihtmust have an actual or leitimate expectation of privacy over a certain matter. 'hesecond is an objective test, where his or her expectation of privacy must be onesociety is prepared to accept as objectively reasonable.?$

-ince the validity of the cybercrime law is bein challened, not in relation to itsapplication to a particular person or roup, petitioners6 challene to -ection #$ appliesto all information and communications technoloy 2IC'4 users, meanin the laresement of the population who use all sorts of electronic devices to communicate withone another. Conse8uently, the expectation of privacy is to be measured from theeneral public6s point of view. !ithout reasonable expectation of privacy, the riht to itwould have no basis in fact.

As the -olicitor /eneral points out, an ordinary IC' user who courses his

communication throuh a service provider, must of necessity disclose to the latter, athird person, the traffic data needed for connectin him to the recipient IC' user. :or example, an IC' user who writes a text messae intended for another IC' user mustfurnish his service provider with his cellphone number and the cellphone number of his recipient, accompanyin the messae sent. It is this information that creates thetraffic data. 'ransmittin communications is a"in to puttin a letter in an envelopeproperly addressed, sealin it closed, and sendin it throuh the postal service.'hose who post letters have no expectations that no one will read the informationappearin outside the envelope.

Computer datamessaes of all "indstravel across the internet in pac"ets and in away that may be li"ened to parcels of letters or thins that are sent throuh the posts.!hen data is sent from any one source, the content is bro"en up into pac"ets andaround each of these pac"ets is a wrapper or header. 'his header contains the traffic

data information that tells computers where the pac"et oriinated, what "ind of data



is in the pac"et 2-0-, voice call, video, internet chat messaes, email, onlinebrowsin data, etc.4, where the pac"et is oin, and how the pac"et fits toether withother pac"ets.?% 'he difference is that traffic data sent throuh the internet at timesacross the ocean do not disclose the actual names and addresses 2residential or office4 of the sender and the recipient, only their coded internet protocol 2I4addresses. 'he pac"ets travel from one computer system to another where their contents are pieced bac" toether.

-ection #$ does not permit law enforcement authorities to loo" into the contents of the messaes and uncover the identities of the sender and the recipient.

:or example, when one calls to spea" to another throuh his cellphone, the serviceprovider6s communication6s system will put his voice messae into pac"ets and sendthem to the other person6s cellphone where they are refitted toether and heard. 'helatter6s spo"en reply is sent to the caller in the same way. 'o be connected by theservice provider, the sender reveals his cellphone number to the service provider when he puts his call throuh. >e also reveals the cellphone number to the person hecalls. 'he other ways of communicatin electronically follow the same basic pattern.

In -mith v. 0aryland,?& cited by the -olicitor /eneral, the nited -tates -upremeCourt reasoned that telephone users in the 9(s must realie that they necessarilyconvey phone numbers to the telephone company in order to complete a call. 'hatCourt ruled that even if there is an expectation that phone numbers one dials shouldremain private, such expectation is not one that society is prepared to reconie as

reasonable.In much the same way, IC' users must "now that they cannot communicate or exchane data with one another over cyberspace except throuh some serviceproviders to whom they must submit certain traffic data that are needed for asuccessful cyberspace communication. 'he conveyance of this data ta"es them outof the private sphere, ma"in the expectation to privacy in reard to them anexpectation that society is not prepared to reconie as reasonable.

'he Court, however, arees with *ustices Carpio and Brion that when seeminlyrandom bits of traffic data are athered in bul", pooled toether, and analyed, theyreveal patterns of activities which can then be used to create profiles of the personsunder surveillance. !ith enouh traffic data, analysts may be able to determine aperson6s close associations, reliious views, political affiliations, even sexual

preferences. -uch information is li"ely beyond what the public may expect to bedisclosed, and clearly falls within matters protected by the riht to privacy. But has theprocedure that -ection #$ of the law provides been drawn narrowly enouh to protectindividual rihtsS

-ection #$ empowers law enforcement authorities, 5with due cause,5 to collect or record by technical or electronic means traffic data in real1time. etitioners point outthat the phrase 5due cause5 has no precedent in law or jurisprudence and thatwhether there is due cause or not is left to the discretion of the police. =eplyin tothis, the -olicitor /eneral asserts that Conress is not re8uired to define the meaninof every word it uses in draftin the law.

Indeed, courts are able to save vaue provisions of law throuh statutoryconstruction. But the cybercrime law, dealin with a novel situation, fails to hint at the

meanin it intends for the phrase 5due cause.5 'he -olicitor /eneral suests that

5due cause5 should mean 5just reason or motive5 and 5adherence to a lawfulprocedure.5 But the Court cannot draw this meanin since -ection #$ does not evenbother to relate the collection of data to the probable commission of a particular crime. It just says, 5with due cause,5 thus justifyin a eneral atherin of data. It isa"in to the use of a eneral search warrant that the Constitution prohibits.

<ue cause is also not descriptive of the purpose for which data collection will be used.!ill the law enforcement aencies use the traffic data to identify the perpetrator of acyber attac"S )r will it be used to build up a case aainst an identified suspectS Canthe data be used to prevent cybercrimes from happeninS

'he authority that -ection #$ ives law enforcement aencies is too sweepin andlac"s restraint. !hile it says that traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly, nothin can prevent lawenforcement aencies holdin these data in their hands from loo"in into the identityof their sender or receiver and what the data contains. 'his will unnecessarily exposethe citienry to lea"ed information or, worse, to extortion from certain bad elements inthese aencies.

-ection #$, of course, limits the collection of traffic data to those 5associated withspecified communications.5 But this supposed limitation is no limitation at all since,evidently, it is the law enforcement aencies that would specify the taretcommunications. 'he power is virtually limitless, enablin law enforcement authoritiesto enae in 5fishin expedition,5 choosin whatever specified communication they

want. 'his evidently threatens the riht of individuals to privacy.'he -olicitor /eneral points out that -ection #$ needs to authorie collection of trafficdata 5in real time5 because it is not possible to et a court warrant that wouldauthorie the search of what is a"in to a 5movin vehicle.5 But warrantless search isassociated with a police officer6s determination of probable cause that a crime hasbeen committed, that there is no opportunity for ettin a warrant, and that unless thesearch is immediately carried out, the thin to be searched stands to be removed.'hese preconditions are not provided in -ection #$.

'he -olicitor /eneral is honest enouh to admit that -ection #$ provides minimalprotection to internet users and that the procedure envisioned by the law could bebetter served by providin for more robust safeuards. >is bare assurance that lawenforcement authorities will not abuse the provisions of -ection #$ is of course not

enouh. 'he rant of the power to trac" cyberspace communications in real time anddetermine their sources and destinations must be narrowly drawn to precludeabuses.?+

etitioners also as" that the Court stri"e down -ection #$ for bein violative of thevoid1for1vaueness doctrine and the overbreadth doctrine. 'hese doctrines however,have been consistently held by this Court to apply only to free speech cases. But-ection #$ on its own neither reulates nor punishes any type of speech. 'herefore,such analysis is unnecessary.

'his Court is mindful that advances in technoloy allow the overnment and "indredinstitutions to monitor individuals and place them under surveillance in ways that havepreviously been impractical or even impossible. 5All the forces of a technoloical aex x x operate to narrow the area of privacy and facilitate intrusions into it. In modern

terms, the capacity to maintain and support this enclave of private life mar"s the

?7



difference between a democratic and a totalitarian society.5 ?7 'he Court must ensurethat laws see"in to ta"e advantae of these technoloies be written with specificityand definiteness as to ensure respect for the rihts that the Constitution uarantees.

Section %) o" the C,&ercrie La!

-ection #% provides

-ec. #%. reservation of Computer <ata. 'he interity of traffic data andsubscriber information relatin to communication services provided by aservice provider shall be preserved for a minimum period of six 274 months

from the date of the transaction. Content data shall be similarly preserved for six 274 months from the date of receipt of the order from law enforcementauthorities re8uirin its preservation.

3aw enforcement authorities may order a one1time extension for another six274 months rovided, 'hat once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the merefurnishin to such service provider of the transmittal document to the )fficeof the rosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

'he service provider ordered to preserve computer data shall "eepconfidential the order and its compliance.

etitioners in /.=. $(%%?#?9 claim that -ection #% constitutes an undue deprivation of the riht to property. 'hey li"en the data preservation order that law enforcementauthorities are to issue as a form of arnishment of personal property in civil forfeitureproceedins. -uch order prevents internet users from accessin and disposin of traffic data that essentially belon to them.

No doubt, the contents of materials sent or received throuh the internet belon totheir authors or recipients and are to be considered private communications. But it isnot clear that a service provider has an obliation to indefinitely "eep a copy of thesame as they pass its system for the benefit of users. By virtue of -ection #%,however, the law now re8uires service providers to "eep traffic data and subscriber information relatin to communication services for at least six months from the date of the transaction and those relatin to content data for at least six months from receiptof the order for their preservation.

Actually, the user ouht to have "ept a copy of that data when it crossed his computer if he was so minded. 'he service provider has never assumed responsibility for their loss or deletion while in its "eep.

At any rate, as the -olicitor /eneral correctly points out, the data that serviceproviders preserve on orders of law enforcement authorities are not madeinaccessible to users by reason of the issuance of such orders. 'he process of preservin data will not unduly hamper the normal transmission or use of the same.

Section %+ o" the C,&ercrie La!

-ection #& provides

-ec. #&. <isclosure of Computer <ata. 3aw enforcement authorities, uponsecurin a court warrant, shall issue an order re8uirin any person or serviceprovider to disclose or submit subscriber6s information, traffic data or relevant data in hisDits possession or control within seventy1two 29$4 hoursfrom receipt of the order in relation to a valid complaint officially doc"etedand assined for investiation and the disclosure is necessary and relevantfor the purpose of investiation.

'he process envisioned in -ection #& is bein li"ened to the issuance of a subpoena.etitioners6 objection is that the issuance of subpoenas is a judicial function. But it iswell1settled that the power to issue subpoenas is not exclusively a judicial function.Executive aencies have the power to issue subpoena as an adjunct of their investiatory powers.?;

Besides, what -ection #& envisions is merely the enforcement of a duly issued courtwarrant, a function usually loded in the hands of law enforcers to enable them tocarry out their executive functions. 'he prescribed procedure for disclosure would notconstitute an unlawful search or seiure nor would it violate the privacy of communications and correspondence. <isclosure can be made only after judicialintervention.

Section % o" the C,&ercrie La!

-ection #+ provides

-ec. #+. -earch, -eiure and Examination of Computer <ata. !here asearch and seiure warrant is properly issued, the law enforcementauthorities shall li"ewise have the followin powers and duties.

!ithin the time period specified in the warrant, to conduct interception, asdefined in this Act, and

2a4 'o secure a computer system or a computer data storaemediumL

2b4 'o ma"e and retain a copy of those computer data securedL

2c4 'o maintain the interity of the relevant stored computer dataL

2d4 'o conduct forensic analysis or examination of the computer data storae mediumL and

2e4 'o render inaccessible or remove those computer data in theaccessed computer or computer and communications networ".

ursuant thereof, the law enforcement authorities may order any person whohas "nowlede about the functionin of the computer system and themeasures to protect and preserve the computer data therein to provide, as isreasonable, the necessary information, to enable the underta"in of thesearch, seiure and examination.

3aw enforcement authorities may re8uest for an extension of time tocomplete the examination of the computer data storae medium and toma"e a return thereon but in no case for a period loner than thirty 2%(4 daysfrom date of approval by the court.

- # - $ f #?; C



etitioners challene -ection #+ on the assumption that it will supplant establishedsearch and seiure procedures. )n its face, however, -ection #+ merely enumeratesthe duties of law enforcement authorities that would ensure the proper collection,preservation, and use of computer system or data that have been seied by virtue of a court warrant. 'he exercise of these duties do not pose any threat on the rihts of the person from whom they were ta"en. -ection #+ does not appear to supersedeexistin search and seiure rules but merely supplements them.

Section % o" the C,&ercrie La!

-ection #9 provides

-ec. #9. <estruction of Computer <ata. pon expiration of the periods asprovided in -ections #% and #+, service providers and law enforcementauthorities, as the case may be, shall immediately and completely destroythe computer data subject of a preservation and examination.

-ection #9 would have the computer data, previous subject of preservation or examination, destroyed or deleted upon the lapse of the prescribed period. 'he-olicitor /eneral justifies this as necessary to clear up the service provider6s storaesystems and prevent overload. It would also ensure that investiations are 8uic"lyconcluded.

etitioners claim that such destruction of computer data subject of previouspreservation or examination violates the user6s riht aainst deprivation of property

without due process of law. But, as already stated, it is unclear that the user has ademandable riht to re8uire the service provider to have that copy of the data savedindefinitely for him in its storae system. If he wanted them preserved, he shouldhave saved them in his computer when he enerated the data or received it. >e couldalso re8uest the service provider for a copy before it is deleted.

Section %< o" the C,&ercrie La!

-ection #? empowers the <epartment of *ustice to restrict or bloc" access tocomputer data

-ec. #?. =estrictin or Bloc"in Access to Computer <ata. !hen acomputer data is prima facie found to be in violation of the provisions of this Act, the <)* shall issue an order to restrict or bloc" access to such

computer data.

etitioners contest -ection #? in that it stifles freedom of expression and violates theriht aainst unreasonable searches and seiures. 'he -olicitor /eneral concedesthat this provision may be unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that -ection #? indeed violates thefreedom and riht mentioned.

Computer data?? may refer to entire prorams or lines of code, includin malware, aswell as files that contain texts, imaes, audio, or video recordins. !ithout havin too into a lenthy discussion of property rihts in the diital space, it is indisputablethat computer data, produced or created by their writers or authors may constitutepersonal property. Conse8uently, they are protected from unreasonable searches andseiures, whether while stored in their personal computers or in the service provider6s

systems.

-ection $, Article III of the #?;9 Constitution provides that the riht to be secure inone6s papers and effects aainst unreasonable searches and seiures of whatever nature and for any purpose shall be inviolable. :urther, it states that no searchwarrant shall issue except upon probable cause to be determined personally by the jude. >ere, the /overnment, in effect, seies and places the computer data under itscontrol and disposition without a warrant. 'he <epartment of *ustice order cannotsubstitute for judicial search warrant.

'he content of the computer data can also constitute speech. In such a case, -ection#? operates as a restriction on the freedom of expression over cyberspace. Certainlynot all forms of speech are protected. 3eislature may, within constitutional bounds,declare certain "inds of expression as illeal. But for an executive officer to seiecontent alleed to be unprotected without any judicial warrant, it is not enouh for himto be of the opinion that such content violates some law, for to do so would ma"e him jude, jury, and executioner all rolled into one.#((

Not only does -ection #? preclude any judicial intervention, but it also disreards jurisprudential uidelines established to determine the validity of restrictions onspeech. =estraints on free speech are enerally evaluated on one of or a combinationof three tests the danerous tendency doctrine, the balancin of interest test, and theclear and present daner rule.#(# -ection #?, however, merely re8uires that the data tobe bloc"ed be found prima facie in violation of any provision of the cybercrime law.'a"in -ection 7 into consideration, this can actually be made to apply in relation toany penal provision. It does not ta"e into consideration any of the three tests

mentioned above.

'he Court is therefore compelled to stri"e down -ection #? for bein violative of theconstitutional uarantees to freedom of expression and aainst unreasonablesearches and seiures.

Section '= o" the C,&ercrie La!

-ection $( provides

-ec. $(. Noncompliance. :ailure to comply with the provisions of Chapter I hereof specifically the orders from law enforcement authorities shall bepunished as a violation of residential <ecree No. #;$? with imprisonmentof prision correctional in its maximum period or a fine of )ne hundredthousand pesos 2hp#((,(((.((4 or both, for each and everynoncompliance with an order issued by law enforcement authorities.

etitioners challene -ection $(, allein that it is a bill of attainder. 'he arument isthat the mere failure to comply constitutes a leislative findin of uilt, without reardto situations where non1compliance would be reasonable or valid.

But since the non1compliance would be punished as a violation of residential <ecree2.<.4 #;$?,#($ -ection $( necessarily incorporates elements of the offense which aredefined therein. If Conress had intended for -ection $( to constitute an offense inand of itself, it would not have had to ma"e reference to any other statue or provision.

.<. #;$? states

-ection #. 'he penalty of prision correccional in its maximum period, or a

fine ranin from #,((( to 7,((( pesos, or both, shall be imposed upon any

h " i l illf ll b t t i d f t t d l th : th th f l ti f th b it l i i t t ith th li f th



person who "nowinly or willfully obstructs, impedes, frustrates or delays theapprehension of suspects and the investiation and prosecution of criminalcases by committin any of the followin acts

x x x.

'hus, the act of non1compliance, for it to be punishable, must still be done 5"nowinlyor willfully.5 'here must still be a judicial determination of uilt, durin which, as the-olicitor /eneral assumes, defense and justifications for non1compliance may beraised. 'hus, -ection $( is valid insofar as it applies to the provisions of Chapter Iwhich are not struc" down by the Court.

Sections '+ and '94a5 o" the C,&ercrie La!

-ections $& and $72a4 provide

-ec. $&. Cybercrime Investiation and Coordinatin Center.M 'here ishereby created, within thirty 2%(4 days from the effectivity of this Act, an inter1aency body to be "nown as the Cybercrime Investiation and CoordinatinCenter 2CICC4, under the administrative supervision of the )ffice of theresident, for policy coordination amon concerned aencies and for theformulation and enforcement of the national cybersecurity plan.

-ec. $7. owers and :unctions.M 'he CICC shall have the followin powersand functions

2a4 'o formulate a national cybersecurity plan and extendimmediate assistance of real time commission of cybercrimeoffenses throuh a computer emerency response team 2CE='4L xx x.

etitioners mainly contend that Conress invalidly deleated its power when it avethe Cybercrime Investiation and Coordinatin Center 2CICC4 the power to formulatea national cybersecurity plan without any sufficient standards or parameters for it tofollow.

In order to determine whether there is undue deleation of leislative power, theCourt has adopted two tests the completeness test and the sufficient standard test.nder the first test, the law must be complete in all its terms and conditions when it

leaves the leislature such that when it reaches the deleate, the only thin he willhave to do is to enforce it.?avv"hi? 'he second test mandates ade8uate uidelines or limitations in the law to determine the boundaries of the deleate6s authority andprevent the deleation from runnin riot.#(%

>ere, the cybercrime law is complete in itself when it directed the CICC to formulateand implement a national cybersecurity plan. Also, contrary to the position of thepetitioners, the law ave sufficient standards for the CICC to follow when it provided adefinition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, ris" manaement approaches,actions, trainin, best practices, assurance and technoloies that can be used toprotect cyber environment and oraniation and user6s assets.#(& 'his definitionserves as the parameters within which CICC should wor" in formulatin the

cybersecurity plan.

:urther, the formulation of the cybersecurity plan is consistent with the policy of thelaw to 5prevent and combat such @cyber offenses by facilitatin their detection,investiation, and prosecution at both the domestic and international levels, and byprovidin arranements for fast and reliable international cooperation.5#(+ 'his policyis clearly adopted in the interest of law and order, which has been considered assufficient standard.#(7 >ence, -ections $& and $72a4 are li"ewise valid.

HEREFORE, the Court *ECLARES

#. VOI* for bein NCONS/I//IONAL

a. -ection &2c42%4 of =epublic Act #(#9+ that penalies postin of unsolicitedcommercial communicationsL

b. -ection #$ that authories the collection or recordin of traffic data in real1timeL and

c. -ection #? of the same Act that authories the <epartment of *ustice torestrict or bloc" access to suspected Computer <ata.

$. VALI* and CONS/I//IONAL

a. -ection &2a42#4 that penalies accessin a computer system without rihtLb. -ection &2a42%4 that penalies data interference, includin transmission of

virusesLc. -ection &2a4274 that penalies cyber1s8uattin or ac8uirin domain name

over the internet in bad faith to the prejudice of othersL

d. -ection &2b42%4 that penalies identity theft or the use or misuse of identifyininformation belonin to anotherL

e. -ection &2c42#4 that penalies cybersex or the lascivious exhibition of sexualorans or sexual activity for favor or considerationL

f. -ection &2c42$4 that penalies the production of child pornoraphyL. -ection 7 that imposes penalties one deree hiher when crimes defined

under the =evised enal Code are committed with the use of informationand communications technoloiesL

h. -ection ; that prescribes the penalties for cybercrimesLi. -ection #% that permits law enforcement authorities to re8uire service

providers to preserve traffic data and subscriber information as well asspecified content data for six monthsL

j. -ection #& that authories the disclosure of computer data under a court1

issued warrantL". -ection #+ that authories the search, seiure, and examination of computer data under a court1issued warrantL

l. -ection #9 that authories the destruction of previously preserved computer data after the expiration of the prescribed holdin periodsL

m. -ection $( that penalies obstruction of justice in relation to cybercrimeinvestiationsL

n. -ection $& that establishes a Cybercrime Investiation and CoordinatinCenter 2CICC4L

o. -ection $72a4 that defines the CICC6s owers and :unctionsL andp. Articles %+%, %+&, %7#, and %7$ of the =evised enal Code that penalies

libel.

:urther, the Court *ECLARES

# - ti &2 42&4 th t li li lib l VALI* d CONS/I//IONAL ith 3 tl th C t RESOLVES t LEAVE /HE *E/ER!INA/ION f th t



#. -ection &2c42&4 that penalies online libel as VALI* and CONS/I//IONAL withrespect to the oriinal author of the postL but VOI* and NCONS/I//IONAL withrespect to others who simply receive the post and react to itL and

$. -ection + that penalies aidin or abettin and attempt in the commission of cybercrimes as VALI* and CONS/I//IONAL only in relation to -ection &2a42#4 onIlleal Access, -ection &2a42$4 on Illeal Interception, -ection &2a42%4 on <ataInterference, -ection &2a42&4 on -ystem

Interference, -ection &2a42+4 on 0isuse of <evices, -ection &2a4274 on Cyber1s8uattin, -ection &2b42#4 on Computer1related :orery, -ection &2b42$4 on Computer1

related :raud, -ection &2b42%4 on Computer1related Identity 'heft, and -ection &2c42#4on CybersexL but )I< and NC)N-'I''I)NA3 with respect to -ections &2c42$4on Child ornoraphy, &2c42%4 on nsolicited Commercial Communications, and &2c42&4 on online 3ibel.

3astly, the Court RESOLVES to LEAVE /HE *E/ER!INA/ION of the correctapplication of -ection 9 that authories prosecution of the offender under both the=evised enal Code and =epublic Act #(#9+ to actual cases, I/H /HEEMCE/ION of the crimes of

#. )nline libel as to which, charin the offender under both -ection &2c42&4 of =epublic Act #(#9+ and Article %+% of the =evised enal Code constitutes a violationof the proscription aainst double jeopardyL as well as

$. Child pornoraphy committed online as to which, charin the offender under both-ection &2c42$4 of =epublic Act #(#9+ and =epublic Act ?99+ or the Anti1Child

ornoraphy Act of $((? also constitutes a violation of the same proscription,

and, in respect to these, is VOI* and NCONS/I//IONAL.

SO OR*ERE*.

CHALINS V. NE HA!SHIRE

-=E0E C)=' ): '>E NI'E< -'A'E-

315 .S. 568 *e&"e !ar&$ , 12

Sylla+us

#. 'hat part of c. %9;, R $, of the ublic 3aws of New >ampshire which forbids under

penalty that any person shall address 5any offensive, derisive or annoyin word toany other person who is lawfully in any street or other public place,5 or 5call him byany offensive or derisive name,5 was construed by the -upreme Court of the -tate, inthis case and before this case arose, as limited to the use in a public place of wordsdirectly tendin to cause a breach of the peace by provo"in the person addressed toacts of violence.

>eld

2#4 'hat, so construed, it is sufficiently definite and specific to comply withre8uirements of due process of law. . +9%.

2$4 'hat as applied to a person who, on a public street, addressed another as a5damned :ascist5 and a 5damned rac"eteer,5 it does not substantially or unreasonably impine upon freedom of speech. . +9&.

2%4 'he refusal of the state court to admit evidence offered by the defendanttendin to prove provocation and evidence bearin on the truth or falsity of the utterances chared is open to no constitutional objection. . +9&.

$. 'he Court notices judicially that the appellations 5damned rac"eteer5 and 5damned:ascist5 are epithets li"ely to provo"e the averae person to retaliation, and therebycause a breach of the peace. . +9&.

?# N. >. %#(, #; A. $d 9+&, affirmed.

!R. S/ICE !RH delivered the opinion of the Court.

Appellant, a member of the sect "nown as *ehovahJs !itnesses, was convicted in themunicipal court of =ochester, New >ampshire, for violation of Chapter %9;, R $, of theublic 3aws of New >ampshire

5No person shall address any offensive, derisive or annoyin word to any other person who is lawfully in any street or other public place, nor call him by any offensiveor derisive name, nor ma"e any noise or exclamation in his presence and hearinwith intent to deride, offend or annoy him, or to prevent him from pursuin his lawful

business or occupation.5

'he complaint chared that appellant, 5with force and arms, in a certain public placein said city of =ochester, to wit, on the public sidewal" on the easterly side of !a"efield -treet, near unto the entrance of the City >all, did unlawfully repeat, thewords followin, addressed to the complainant, that is to say, JPou are a /od damnedrac"eteerJ and Ja damned :ascist and the whole overnment of =ochester are:ascists or aents of :ascists,J the same bein offensive, derisive and annoyinwords and names.5

pon appeal there was a trial de novo of appellant before a jury in the -uperior Court.>e was found uilty and the judment of conviction was affirmed by the -upremeCourt of the -tate. ?# N.>. %#(, #; A. $d 9+&.

By motions and exceptions, appellant raised the 8uestions that the statute was invalidunder the :ourteenth Amendment of the Constitution of the nited -tates, in that itplaced an unreasonable restraint on freedom of speech, freedom of the press, andfreedom of worship, and because it was vaue and indefinite. 'hese contentions wereoverruled and the case comes here on appeal.

'here is no substantial dispute over the facts. Chaplins"y was distributin theliterature of his sect on the streets @+9( of =ochester on a busy -aturday afternoon.0embers of the local citienry complained to the City 0arshal, Bowerin, thatChaplins"y was denouncin all reliion as a 5rac"et.5 Bowerin told them thatChaplins"y was lawfully enaed, and then warned Chaplins"y that the crowd wasettin restless. -ome time later, a disturbance occurred and the traffic officer on dutyat the busy intersection started with Chaplins"y for the police station, but did notinform him that he was under arrest or that he was oin to be arrested. )n the way,

they encountered 0arshal Bowerin, who had been advised that a riot was under way

and was therefore hurryin to the scene Bowerin repeated his earlier warnin to separately from the other Assumin without holdin that the second were



and was therefore hurryin to the scene. Bowerin repeated his earlier warnin toChaplins"y, who then addressed to Bowerin the words set forth in the complaint.

Chaplins"yJs version of the affair was slihtly different. >e testified that, when he metBowerin, he as"ed him to arrest the ones responsible for the disturbance. In reply,Bowerin cursed him and told him to come alon. Appellant admitted that he said thewords chared in the complaint, with the exception of the name of the <eity.

)ver appellantJs objection the trial court excluded, as immaterial, testimony relatin toappellantJs mission 5to preach the true facts of the Bible,5 his treatment at the handsof the crowd, and the alleed nelect of duty on the part of the police. 'his action was

approved by the court below, which held that neither provocation nor the truth of theutterance would constitute a defense to the chare.

It is now clear that 5:reedom of speech and freedom of the press, which are protectedby the :irst Amendment from infrinement by Conress, are amon the fundamentalpersonal rihts and liberties which are protected by the :ourteenth Amendment frominvasion by state @+9# action.5 Lovell v. ,riffin# %(% .-. &&&, &+(.@note # :reedom of worship is similarly sheltered. Cant*ell v. Connecticut# %#( .-. $?7, %(%.

Appellant assails the statute as a violation of all three freedoms, speech, press andworship, but only an attac" on the basis of free speech is warranted. 'he spo"en, notthe written, word is involved. And we cannot conceive that cursin a public officer isthe exercise of reliion in any sense of the term. But even if the activities of theappellant which preceded the incident could be viewed as reliious in character, andtherefore entitled to the protection of the :ourteenth Amendment, they would notcloa" him with immunity from the leal conse8uences for concomitant acts committedin violation of a valid criminal statute. !e turn, therefore, to an examination of thestatute itself.

Allowin the broadest scope to the lanuae and purpose of the :ourteenth Amendment, it is well understood that the riht of free speech is not absolute at alltimes and under all circumstances.@note $ 'here are certain well1defined andnarrowly limited classes of speech, the prevention @+9$ and punishment of whichhave never been thouht to raise any Constitutional problem.@note % 'hese includethe lewd and obscene, the profane, the l ibelous, and the insultin or 5f ihtin5 words11those which by their very utterance inflict injury or tend to incite an immediate breachof the peace.@note & It has been well observed that such utterances are no essential

part of any exposition of ideas, and are of such sliht social value as a step to truththat any benefit that may be derived from them is clearly outweihed by the socialinterest in order and morality.@note + 5=esort to epithets or personal abuse is not inany proper sense communication of information or opinion safeuarded by theConstitution, and its punishment as a criminal act would raise no 8uestion under thatinstrument.5 Cant*ell v. Connecticut# %#( .-. $?7, %(?1%#(.

'he state statute here challened comes to us authoritatively construed by thehihest court of New >ampshire. It has two provisions11the first relates to words or names addressed to another in a public placeL the second refers to noises andexclamations. 'he court said 5'he two provisions are distinct. )ne may stand

separately from the other. Assumin, without holdin, that the second wereunconstitutional, the first could stand if constitutional.5 !e accept that construction of severability and limit our consideration to the first provision of the statute.@note 7

@+9% )n the authority of its earlier decisions, the state court declared that thestatuteJs purpose was to preserve the public peace, no words bein 5forbidden exceptsuch as have a direct tendency to cause acts of violence by the persons to whom,individually, the remar" is addressed.5 @note 9 It was further said 5'he wordJoffensiveJ is not to be defined in terms of what a particular addressee thin"s. . . . 'hetest is what men of common intellience would understand would be words li"ely tocause an averae addressee to fiht. . . . 'he Enlish lanuae has a number of words and expressions which by eneral consent are Jfihtin wordsJ when saidwithout a disarmin smile. . . . -uch words, as ordinary men "now, are li"ely to causea fiht. -o are threatenin, profane or obscene revilins. <erisive and annoyinwords can be ta"en as comin within the purview of the statute as heretoforeinterpreted only when they have this characteristic of plainly tendin to excite theaddressee to a breach of the peace. . . . 'he statute, as construed, does no morethan prohibit the face1to1face words plainly li"ely to cause a breach of the peace bythe addressee, words whose spea"in constitutes a breach of the peace by thespea"er11includin Jclassical fihtin wordsJ, words in current use less JclassicalJ bute8ually li"ely to cause violence, and other disorderly words, includin profanity,obscenity and threats.5

!e are unable to say that the limited scope of the statute as thus construed

contravenes the Constitutional riht of free expression. It is a statute narrowly drawnand limited to define and punish specific conduct lyin within the domain of statepower, the use in a public place of words li"ely to cause a breach of the peace. Cf.Cant*ell v. Connecticut# %#( .-. $?7, %##L 3hornhill v. Ala+ama# @+9& %#( .-. ;;,#(+. 'his conclusion necessarily disposes of appellantJs contention that the statute isso vaue and indefinite as to render a conviction thereunder a violation of dueprocess. A statute punishin verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vaue for a criminal law. Cf. 5ox v. Washington# $%7.-. $9%, $99.@note ;

Nor can we say that the application of the statute to the facts disclosed by the recordsubstantially or unreasonably impines upon the privilee of free speech. Arument isunnecessary to demonstrate that the appellations 5damned rac"eteer5 and 5damned:ascist5 are epithets li"ely to provo"e the averae person to retaliation, and thereby

cause a breach of the peace.

'he refusal of the state court to admit evidence of provocation and evidence bearinon the truth or falsity of the utterances, is open to no Constitutional objection.!hether the facts souht to be proved by such evidence constitute a defense to thechare, or may be shown in mitiation, are 8uestions for the state court to determine.)ur function is fulfilled by a determination that the challened statute, on its face andas applied, does not contravene the :ourteenth Amendment.

Affirmed.

!VRS LICA/IONS V. ISLA!IC *AQAH CONCIL

EN ANC

G.R. No. 135306 a#uary 28, 2003

!VRS LICA/IONS INC !ARS C LACONSA !LA C AGA a# therefore were not entitled to damaesL and that the article was merely an



!VRS LICA/IONS, INC., !ARS C. LACONSA, !LA C. AGA a#AGS/INO G. INEGAS, R., petitioners,vs.ISLA!IC *AAH CONCIL OF /HE HILIINES, INC., A*LRAH!AN R./.LINZAG, IRAHI! F.. ARCILLA, A*L RASHI* *E GZ!AN, ALBFARE* *ASILVA a# IRAHI! .A. NIO, respondents.

ELLOSILLO, J .

6 may utterly detest *hat you *rite# +ut 6 shall fight to the death to ma%e it "ossi+le for you to continue *riting it.

>oltaire

)3'AI=EJ- )N'I:ICA3 E=-E bestirs once aain the basic liberties to freespeech and free press liberties that belon as well, if not more, to those who8uestion, who do not conform, who differ. :or the ultimate ood which we all strive toachieve for ourselves and our posterity can better be reached by a free exchane of ideas, where the best test of truth is the power of the thouht to et itself accepted inthe competition of the free mar"et not just the ideas we desire, but includin thosethouhts we despise.#

I-3A0IC <AJ!A> C)NCI3 ): '>E >I3IINE-, INC., a local federation of morethan seventy 29(4 0uslim reliious oraniations, and individual 0uslims

AB<3=A>0AN =.'. 3INXA/, IB=A>I0 :.. A=CI33A, AB<3 =A->I< <E/X0AN, A31:A=E< <A -I3A and IB=A>I0 B.A. *NI), filed in the =eional 'rialCourt of 0anila a complaint for damaes in their own behalf and as a class suit inbehalf of the 0uslim members nationwide aainst 0=- B3ICA'I)N-, INC.,0A=- C. 3AC)N-AP, 0P3A C. A/*A and A/-'IN) /. BINE/A-, *=., arisinfrom an article published in the # Auust #??$ issue of Bular, a daily tabloid. 'hearticle reads

5 ALAM BA )6)OS

)a ang mga +a+oy at %ahit anong uri ng hayo" sa Mindanao ay hindi %ina%ain ng mga MuslimS

&ara sa %anila ang mga ito ay isang sagradong +agay. 7indi nila ito

%ailangang %ainin %ahit na sila "a ay magutom at ma*alan ng ulam satu*ing sila ay %a%ain. ,inaga*a nila itong -iyos at sinasam+a "a nila ito satu*ing ara* ng %anilang "angingilin lalung4lalo na sa ara* na tinata*ag nilang >/amadan> .5

'he complaint alleed that the libelous statement was insultin and damain to the0uslimsL that these words alludin to the pi as the /od of the 0uslims was not onlypublished out of sheer inorance but with intent to hurt the feelins, cast insult anddisparae the 0uslims and Islam, as a reliion in this country, in violation of law,public policy, ood morals and human relationsL that on account of these libelouswords Bulgar insulted not only the 0uslims in the hilippines but the entire 0uslimworld, especially every 0uslim individual in non10uslim countries.

0=- B3ICA'I)N-, INC., and A/-'IN) /. BINE/A-, *=., in their defense,

contended that the article did not mention respondents as the object of the article and

therefore were not entitled to damaesL and, that the article was merely anexpression of belief or opinion and was published without malice nor intention tocause damae, prejudice or injury to 0uslims.$

)n %( *une #??+ the trial court dismissed the complaint holdin that the plaintiffsfailed to establish their cause of action since the persons alleedly defamed by thearticle were not specifically identified

It must be noted that the persons alleedly defamed, the herein plaintiffs,were not identified with specificity. 'he subject article was directed at the0uslims without mentionin or identifyin the herein plaintiffs x x x. It is thus

apparent that the alleed libelous article refers to the larer collectivity of 0uslims for which the readers of the libel could not readily identify thepersonalities of the persons defamed. >ence, it is difficult for an individual0uslim member to prove that the defamatory remar"s apply to him. 'heevidence presented in this case failed to convince this court that, indeed, thedefamatory remar"s really applied to the herein plaintiffs.%

)n $9 Auust #??; the Court of Appeals reversed the decision of the trial court. Itopined that it was 5clear from the disputed article that the defamation was directed toall adherents of the Islamic faith. It stated that pis were sacred and idolied as odby members of the 0uslim reliion. 'his libelous imputation undeniably applied to theplaintiff1appellants who are 0uslims sharin the same reliious beliefs.5 It added thatthe suit for damaes was a 5class suit5 and that I-3A0IC <AJ!A> C)NCI3 ):

'>E >I3IINE-, INC.Js reliious status as a 0uslim umbrella oraniation ave itthe re8uisite personality to sue and protect the interests of all 0uslims.&

>ence, the instant petition for review assailin the findins of the appellate court 2a4on the existence of the elements of libel, 2b4 the riht of respondents to institute theclass suit, and, 2c4 the liability of petitioners for moral damaes, exemplary damaes,attorneyJs fees and costs of suit.

<efamation, which includes libel and slander, means the offense of injurin a personJscharacter, fame or reputation throuh false and malicious statements.+ It is that whichtends to injure reputation or to diminish the esteem, respect, ood will or confidencein the plaintiff or to excite deroatory feelins or opinions about the plaintiff. 7 It is thepublication of anythin which is injurious to the ood name or reputation of another or tends to brin him into disrepute.9 <efamation is an invasion of a relational interest

since it involves the opinion which others in the community may have, or tend tohave, of the plaintiff.;

It must be stressed that words which are merely insultin are not actionable as libel or slander per se, and mere words of eneral abuse however opprobrious, ill1natured, or vexatious, whether written or spo"en, do not constitute a basis for an action for defamation in the absence of an alleation for special damaes.? 'he fact that thelanuae is offensive to the plaintiff does not ma"e it actionable by itself.#(

<eclarations made about a lare class of people cannot be interpreted to advert to anidentified or identifiable individual. Absent circumstances specifically pointin or alludin to a particular member of a class, no member of such class has a riht of action## without at all impairin the e8ually demandin riht of free speech andexpression, as well as of the press, under the Bill of /ights.#$ 'hus, in )e*s*ee%# 6nc.

v. 6ntermediate A""ellate Court ,#%

we dismissed a complaint for libel aainst

)e*s*ee% 6nc on the round that private respondents failed to state a cause of 'he rule on libel has been restrictive In an American case #+ a person had alleedly



)e*s*ee%# 6nc ., on the round that private respondents failed to state a cause of action since they made no alleation in the complaint that anythin contained in thearticle complained of specifically referred to any of them. rivate respondents,incorporated associations of suarcane planters in Neros )ccidental claimin tohave ;,+(( members and several individual members, filed a class action suit for damaes in behalf of all suarcane planters in Neros )ccidental. 'he complaint f iledin the Court of :irst Instance of Bacolod City alleed that Newswee", Inc., committedlibel aainst them by the publication of the article 5Island of :ear5 in its wee"lynewsmaaine alleedly depictin Neros rovince as a place dominated by wealthylandowners and suar planters who not only exploited the impoverished and

underpaid suarcane wor"ers but also brutalied and "illed them with impunity.rivate respondents alleed that the article showed a deliberate and malicious use of falsehood, slanted presentation andDor misrepresentation of facts intended to put thesuarcane planters in a bad liht, expose them to public ridicule, discredit andhumiliation in the hilippines and abroad, and ma"e them the objects of hatred,contempt and hostility of their aricultural wor"ers and of the public in eneral. !eratiocinated

x x x where the defamation is alleed to have been directed at a roup or class, it is essential that the statement must be so sweepin or all1embracinas to apply to every individual in that roup or class, or sufficiently specific sothat each individual in the class or roup can prove that the defamatorystatement specifically pointed to him, so that he can brin the actionseparately, if need be x x x x 'he case at bar is not a class suit. It is not a

case where one or more may sue for the benefit of all, or where therepresentation of class interest affected by the judment or decree isindispensable to ma"e each member of the class an actual party. !e havehere a case where each of the plaintiffs has a separate and distinctreputation in the community. 'hey do not have a common or eneral interestin the subject matter of the controversy.

In the present case, there was no fairly identifiable person who was alleedly injuredby the Bulgar article. -ince the persons alleedly defamed could not be identifiable,private respondents have no individual causes of actionL hence, they cannot sue for aclass alleedly disparaed. rivate respondents must have a cause of action incommon with the class to which they belon to in order for the case to prosper.

An individual 0uslim has a reputation that is personal, separate and distinct in the

community. Each 0uslim, as part of the larer 0uslim community in the hilippines of over five 2+4 million people, belons to a different trade and professionL each has avaryin interest and a diverent political and reliious view some may beconservative, others liberal. A 0uslim may find the article dishonorable, evenblasphemousL others may find it as an opportunity to strenthen their faith andeducate the non1believers and the 5infidels.5 'here is no injury to the reputation of theindividual 0uslims who constitute this community that can ive rise to an action for roup libel. Each reputation is personal in character to every person. 'oether, the0uslims do not have a sinle common reputation that will ive them a common or eneral interest in the subject matter of the controversy.

In Arcand v. 3he Evening Call &u+lishing Com"any ,#& the nited -tates Court of Appeals held that one uidin principle of roup libel is that defamation of a largegrou" does not give rise to a cause of action on the "art of an individual unless it can+e sho*n that he is the target of the defamatory matter .

'he rule on libel has been restrictive. In an American case, a person had alleedlycommitted libel aainst all persons of the *ewish reliion. 'he Court held that therecould be no libel aainst an extensive community in common law. In an Enlish case,where libel consisted of alleations of immorality in a Catholic nunnery, the Courtconsidered that if the libel were on the whole =oman Catholic Church enerally, thenthe defendant must be absolved.#7 !ith reard to the larest sectors in society,includin reliious roups, it may be enerally concluded that no criminal action at thebehest of the state, or civil action on behalf of the individual, wil l lie.

In another case, the plaintiffs claimed that all 0uslims, numberin more than 7((million, were defamed by the airin of a national television broadcast of a filmdepictin the public execution of a -audi Arabian princess accused of adultery, andallein that such film was 5insultin and defamatory5 to the Islamic reliion.#9 'henited -tates <istrict Court of the Northern <istrict of California concluded that theplaintiffsJ prayer for Q$( Billion in damaes arisin from 5an international conspiracy toinsult, ridicule, discredit and abuse followers of Islam throuhout the world, Arabs andthe Findom of -audi Arabia5 bordered on the 5frivolous,5 rulin that the plaintiffs hadfailed to demonstrate an actionable claim for defamation. 'he California Courtstressed that the aim of the law on defamation was to "rotect individualsL a roupmay be sufficiently lare that a statement concernin it could not defame individualroup members.#;

hilip !ittenber, in his boo" 5-angerous Words8 A ,uide to the La* of Li+el ,5#?

discusses the inappropriateness of any action for tortious libel involvin lare roups,

and provides a succinct illustration

'here are roupins which may be finite enouh so that a description of thebody is a description of the members. >ere the problem is merely one of evaluation. Is the description of the member implicit in the description of thebody, or is there a possibility that a and those excluded from itS

A eneral chare that the lawyers in the city are shysters would obviouslynot be a chare that all of the lawyers were shysters. A chare that thelawyers in a local point in a reat city, such as 'imes -8uare in New Por"City, were shysters would obviously not include all of the lawyers whopracticed in that districtL but a statement that all of the lawyers who practicedin a particular buildin in that district were shysters would be a specificchare, so that any lawyer havin an office within that buildin could sue.

If the roup is a very lare one, then the alleed libelous statement is considered tohave no application to anyone in particular, since one miht as well defame allman"ind. Not only does the roup as such have no actionL the plaintiff does notestablish any personal reference to himself.$( At present, modern societal roups areboth numerous and complex. 'he same principle follows with these roups as thesie of these roups increases, the chances for members of such roups to recover damaes on tortious libel become elusive. 'his principle is said to embrace two 2$4important public policies first , where the roup referred to is lare, the courtspresume that no reasonable reader would ta"e the statements as so literally applyinto each individual memberL and second , the limitation on liability would satisfactorilysafeuard freedom of speech and expression, as well as of the press, effectin asound compromise between the conflictin fundamental interests involved in libelcases.$#

In the instant case the 0uslim community is too vast as to readily ascertain who 'he rule in libel is that the action must be brouht by the person aainst



In the instant case, the 0uslim community is too vast as to readily ascertain whoamon the 0uslims were particularly defamed. 'he sie of the roup renders thereference as indeterminate and eneric as a similar attac" on Catholics, rotestants,Buddhists or 0ormons would do. 'he word 50uslim5 is descriptive of those who arebelievers of Islam, a reliion divided into varyin sects, such as the -unnites, the-hiites, the Fharijites, the -ufis and others based upon political and theoloicaldistinctions. 50uslim5 is a name which describes only a eneral sement of thehilippine population, comprisin a heteroeneous body whose construction is not sowell defined as to render it impossible for any representative identification.

'he Christian reliion in the hilippines is li"ewise divided into different sectsCatholic, Baptist, Episcopalian, resbyterian, 3utheran, and other roups the essenceof which may lie in an inspired charlatan, whose temple may be a corner house in thefrines of the countryside. As with the Christian reliion, so it is with other reliionsthat represent the nationJs culturally diverse people and minister to each oneJsspiritual needs. 'he 0uslim population may be divided into smaller roups withvaryin aenda, from the prayerful conservative to the passionately radical. 'hesedivisions in the 0uslim population may still be too lare and ambiuous to provide areasonable inference to any personality who can brin a case in an action for libel.

'he foreoin are in essence the same view scholarly expressed by 0r. *ustice=eynato -. uno in the course of the deliberations in this case. !e extensivelyreproduce hereunder his comprehensive and penetratin discussion on roup libel

<efamation is made up of the twin torts of libel and slander the one bein,in eneral, written, while the other in eneral is oral. In either form,defamation is an invasion of the interest in reputation and ood name. 'hisis a 5relational interest5 since it involves the opinion others in the communitymay have, or tend to have of the plaintiff.

'he law of defamation protects the interest in reputation the interest inac8uirin, retainin and enjoyin oneJs reputation as ood as oneJs character and conduct warrant. 'he mere fact that the plaintiffJs feelins andsensibilities have been offended is not enouh to create a cause of action for defamation. <efamation re8uires that somethin be communicated to a thirdperson that may affect the opinion others may have of the plaintiff. 'heunprivileed communication must be shown of a statement that would tendto hurt plaintiffJs reputation, to impair plaintiffJs standin in the community.

Althouh the ist of an action for defamation is an injury to reputation, thefocus of a defamation action is upon the alleedly defamatory statementitself and its predictable effect upon third persons. A statement is ordinarilyconsidered defamatory if it 5tend@s to expose one to public hatred, shame,oblo8uy, contumely, odium, contempt, ridicule, aversion, ostracism,deradation or disracex x x.5 'he =estatement of 'orts defines adefamatory statement as one that 5tends to so harm the reputation of another as to lower him in the estimation of the community or to deter thirdpersons from associatin or dealin with him.5

Conse8uently as a prere8uisite to recovery, it is necessary for the plaintiff toprove as part of his "rima facie case that the defendant 2#4 published astatement that was 2$4 defamatory 2%4 of and concernin the plaintiff.

'he rule in libel is that the action must be brouht by the person aainstwhom the defamatory chare has been made. In the American jurisdiction,no action lies by a third person for damaes suffered by reason of defamation of another person, even thouh the plaintiff suffers some injurytherefrom. :or recovery in defamation cases, it is necessary that thepublication be 5of and concernin the plaintiff.5 Even when a publication maybe clearly defamatory as to somebody, if the words have no personalapplication to the plaintiff, they are not actionable by him. If no one isidentified, there can be no libel because no oneJs reputation has beeninjured x x x x

In fine, in order for one to maintain an action for an alleed defamatorystatement, it must appear that the plaintiff is the person with reference towhom the statement was made. 'his principle is of vital importance in caseswhere a roup or class is defamed since, usually, the larer the collective,the more difficult it is for an individual member to show that he was theperson at whom the defamation was directed.

If the defamatory statements were directed at a small, restricted roup of persons, they applied to any member of the roup, and an individualmember could maintain an action for defamation. !hen the defamatorylanuae was used toward a small roup or class, includin every member,it has been held that the defamatory lanuae referred to each member sothat each could maintain an action. 'his small roup or class may be a jury,

persons enaed in certain businesses, professions or employments, arestricted subdivision of a particular class, a society, a football team, a family,small roups of union officials, a board of public officers, or enineers of aparticular company.

In contrast, if defamatory words are used broadly in respect to a lare classor roup of persons, and there is nothin that points, or by proper collo8uiumor innuendo can be made to apply, to a particular member of the class or roup, no member has a riht of action for libel or slander. !here thedefamatory matter had no special, personal application and was so eneralthat no individual damaes could be presumed, and where the class referredto was so numerous that reat vexation and oppression miht row out of the multiplicity of suits, no private action could be maintained. 'his rule hasbeen applied to defamatory publications concernin roups or classes of

persons enaed in a particular business, profession or employment,directed at associations or roups of association officials, and to thosedirected at miscellaneous roups or classes of persons.

<istinuishin a small roup which if defamed entitles all its members tosue from a lare roup which if defamed entitles no one to sue is notalways so simple. -ome authorities have noted that in cases permittinrecovery, the roup enerally has twenty five 2$+4 or fewer members.>owever, there is usually no articulated limit on sie. -uits have beenpermitted by members of fairly lare roups when some distinuishincharacteristic of the individual or roup increases the li"elihood that thestatement could be interpreted to apply individually. :or example, a sinleplayer on the 7( to 9( man )"lahoma niversity football team was permittedto sue when a writer accused the entire team of ta"in amphetamines to

5hop up5 its performanceL the individual was a fullbac" i e a sinificant country $+ It is thus beyond cavil that the present case falls within the application of the



hop up its performanceL the individual was a fullbac", i.e., a sinificantposition on the team and had played in all but two of the teamJs ames.

A prime consideration, therefore, is the public perception of the sie of theroup and whether a statement will be interpreted to refer to every member.'he more oranied and cohesive a roup, the easier it is to tar all itsmembers with the same brush and the more li"ely a court will permit a suitfrom an individual even if the roup includes more than twenty five 2$+4members. At some point, however, increasin sie may be seen to dilute theharm to individuals and any resultin injury will fall beneath the threshold for a viable lawsuit.

x x x x 'here are many other roupins of men than those that are containedwithin the foreoin roup classifications. 'here are all the reliions of theworld, there are all the political and ideoloical beliefsL there are the manycolors of the human race. /roup defamation has been a fertile anddanerous weapon of attac" on various racial, reliious and politicalminorities. -ome states, therefore, have passed statutes to preventconcerted efforts to harass minority roups in the nited -tates by ma"in ita crime to circulate insidious rumors aainst racial and reliious roups.'hus far, any civil remedy for such broadside defamation has been lac"in.

'here have been numerous attempts by individual members to see" redressin the courts for libel on these roups, but very few have succeeded becauseit felt that the roups are too lare and poorly defined to support a findinthat the plaintiff was sinled out for personal attac" x x x x 2citations omitted4.

)ur conclusion therefore is that the statements published by petitioners in the instantcase did not specifically identify nor refer to any particular individuals who werepurportedly the subject of the alleed libelous publication. =espondents can scarcelyclaim to havin been sinled out for social censure pointedly resultin in damaes.

A contrary view is expressed that what is involved in the present case is an intentionaltortious act causin mental distress and not an action for libel. 'hat opinion invo"esCha"lins%y v. )e* 7am"shire$$ where the .-. -upreme Court held that wordsheapin extreme profanity, intended merely to incite hostility, hatred or violence, haveno social value and do not enjoy constitutional protectionL and Beauharnais v. 6llinois$%

where it was also ruled that hate speech which denirates a roup of persons

identified by their reliion, race or ethnic oriin defames that roup and the law mayvalidly prohibit such speech on the same round as defamation of an individual.

!e do not aree to the contrary view articulated in the immediately precedinpararaph. rimarily, an 5emotional distress5 tort action is personal in nature, i.e., it isa civil action filed by an individual $& to assuae the injuries to his emotional tran8uilitydue to personal attac"s on his character. It has no application in the instant casesince no particular individual was identified in the disputed article of Bulgar . Also, thepurported damae caused by the article, assumin there was any, falls under theprinciple of relational harm which includes harm to social relationships in thecommunity in the form of defamationL as distinuished from the principle of reactiveharm which includes injuries to individual emotional tran8uility in the form of aninfliction of emotional distress. In their complaint, respondents clearly asserted analleed harm to the standin of 0uslims in the community, especially to their activities

in propaatin their faith in 0etro 0anila and in other non10uslim communities in the

country. It is thus beyond cavil that the present case falls within the application of therelational harm principle of tort actions for defamation, rather than the reactive harm "rinci"le on which the concept of emotional distress properly belons.

0oreover, under the Second /estatement of the La* , to recover for the intentionalinfliction of emotional distress the plaintiff must show that 2a4 'he conduct of thedefendant was intentional or in rec"less disreard of the plaintiffL 2b4 'he conduct wasextreme and outraeousL 2c4 'here was a causal connection between the defendantJsconduct and the plaintiffJs mental distressL and, 2d4 'he plaintiffJs mental distress wasextreme and severe.$7

5Extreme and outraeous conduct5 means conduct that is so outraeous in character,and so extreme in deree, as to o beyond all possible bounds of decency, and to berearded as atrocious, and utterly intolerable in civilied society. 'he defendantJsactions must have been so terrifyin as naturally to humiliate, embarrass or frihtenthe plaintiff.$9 /enerally, conduct will be found to be actionable where the recitation of the facts to an averae member of the community would arouse his resentmentaainst the actor, and lead him or her to exclaim, 5)utraeousY5 as his or her reaction.$;

5Emotional distress5 means any hihly unpleasant mental reaction such as extremerief, shame, humiliation, embarrassment, aner, disappointment, worry, nausea,mental sufferin and anuish, shoc", friht, horror, and charin.$? 5-evere emotionaldistress,5 in some jurisdictions, refers to any type of severe and disablin emotional or mental condition which may be enerally reconied and dianosed by professionalstrained to do so, includin posttraumatic stress disorder, neurosis, psychosis, chronicdepression, or phobia.%( 'he plaintiff is re8uired to show, amon other thins, that heor she has suffered emotional distress so severe that no reasonable person could beexpected to endure itL severity of the distress is an element of the cause of action# not sim"ly a matter of damages.%#

Any party see"in recovery for mental anuish must prove more than mere worry,anxiety, vexation, embarrassment, or aner. 3iability does not arise from mere insults,indinities, threats, annoyances, petty expressions, or other trivialities. In determininwhether the tort of outrae had been committed, a plaintiff is necessarily expectedand re8uired to be hardened to a certain amount of criticism, rouh lanuae, and tooccasional acts and words that are definitely inconsiderate and un"indL the mere factthat the actor "nows that the other wi ll reard the conduct as insultin, or will have his

feelins hurt, is not enouh.%$

7ustler Magaine v. 5al*ell %% illustrates the test case of a civil action for damaes onintentional infliction of emotional distress. A parody appeared in >ustler maainefeaturin the American fundamentalist preacher and evanelist =everend *erry:alwell depictin him in an inebriated state havin an incestuous, sexual liaison withhis mother in an outhouse. :alwell sued >ustler and its publisher 3arry :lynt for damaes. 'he nited -tates <istrict Court for the !estern <istrict of irinia ruledthat the parody was not libelous, because no reasonable reader would haveunderstood it as a factual assertion that :alwell enaed in the act described. 'he jury, however, awarded Q$((,((( in damaes on a separate count of 5intentionalinfliction of emotional distress,5 a cause of action that did not re8uire a falsestatement of fact to be made. 'he nited -tates -upreme Court in a unanimousdecision overturned the jury verdict of the irinia Court and held that /everend

5al*ell may not recover for intentional infliction of emotional distress. It was arued

that the material miht be deemed outraeous and may have been intended to cause Constitutional problem. 'hese include the lewd and obscene, the profane,



that the material miht be deemed outraeous and may have been intended to causesevere emotional distress, but these circumstances were not sufficient to overcomethe free speech rihts uaranteed under the :irst Amendment of the nited -tatesConstitution. -imply stated, an intentional tort causin emotional distress mustnecessarily ive way to the fundamental riht to free speech.

It must be observed that althouh :alwell was rearded by the .-. >ih Court as a5public fiure,5 he was an individual "articularly singled out or identified in the parodyappearin on >ustler maaine. Also, the emotional distress alleedly suffered by=everend :alwell involved a reactive interest an emotional response to the parodywhich supposedly injured his psycholoical well1bein.

erily, our position is clear that the conduct of petitioners was not extreme or outraeous. Neither was the emotional distress alleedly suffered by respondents sosevere that no reasonable person could be expected to endure it. 'here is noevidence on record that points to that result.

rofessor !illiam rosser, views tort actions on intentional infliction of emotionaldistress in this manner %&

'here is virtually unanimous areement that such ordinary defendants arenot liable for mere insult, indinity, annoyance, or even threats, where thecase is lac"in in other circumstances of aravation. 'he reasons are notfar to see". )ur manners, and with them our law, have not yet proressed tothe point where we are able to afford a remedy in the form of tort damaes

for all intended mental disturbance. 3iability of course cannot be extended toevery trivial indinity x x x x 'he plaintiff must necessarily be expected andre8uired to be hardened to a certain amount of rouh lanuae, and to actsthat are definitely inconsiderate and un"ind x x x /$e 'a"#(")) &a##o(re&o;er +erey be&au%e o) $ur( )ee"#9%.

rofessor Calvert 0aruder reinforces rosser with this succinct observation, vi %+

'here is no occasion for the law to intervene in every case where someoneJsfeelins are hurt. 'here must still be freedom to express an unflatterinopinion, and some safety valve must be left throuh which irascible tempersmay blow off relatively harmless steam.

'hus, it is evident that even American courts are reluctant to adopt a rule of recovery

for emotional harm that would 5open up a wide vista of litiation in the field of badmanners,5 an area in which a 5touhenin of the mental hide5 was thouht to be amore appropriate remedy.%7 erhaps of reater concern were the 8uestions of causation, proof, and the ability to accurately assess damaes for emotional harm,each of which continues to concern courts today.%9

In this connection, the doctrines in Cha"lins%y and Beauharnais had larely beensuperseded by subse8uent :irst Amendment doctrines. Bac" in simpler times in thehistory of free expression the -upreme Court appeared to espouse a theory, "nownas the 3*o4Class 3heory , that treated certain types of expression as taboo forms of speech, beneath the dinity of the :irst Amendment. 'he most celebrated statementof this view was expressed in Cha"lins%y

'here are certain well1defined and narrowly limited classes of speech, the

prevention and punishment of which have never been thouht to raise any

Constitutional problem. 'hese include the lewd and obscene, the profane,the libelous, and the insultin or 5fihtin5 words those which by their veryutterance inflict injury or tend to incite an immediate breach of the peace. Ithas been well observed that such utterances are no essential part of anyexposition of ideas, and are of such sliht social value as a step to truth thatany benefit that may be derived from them is clearly outweihed by thesocial interest in order and morality.

'oday, however, the theory is no loner viableL modern :irst Amendment principleshave passed it by. A+er"&a# &our(% #o o#9er a&&e'( ($e ;"e7 ($a( %'ee&$ +aybe 'ro%&r"be +erey be&au%e "( "% De7,D D'ro)a#e,D D"#%u("#9D or o($er7"%e;u9ar or o))e#%";e.%; Cohen v. California%? is illustrative aul =obert Cohen wore a jac"et bearin the words 5:uc" the <raft5 in a 3os Aneles courthouse in April #?7;,which caused his eventual arrest. Cohen was convicted for violatin a Californiastatute prohibitin any person from 5disturb@in the peace x x x by offensive conduct.5'he .-. -upreme Court conceded that CohenJs expletive contained in his jac"et was5vular,5 but it concluded that his speech was nonetheless protected by the riht tofree speech. It was neither considered an 5incitement5 to i lleal action nor 5obscenity.5It did not constitute insultin or 5fihtin5 words for it had not been directed at aperson who was li"ely to retaliate or at someone who could not avoid the messae. Inother words, no one was present in the 3os Aneles courthouse who would haverearded CohenJs speech as a direct personal insult, nor was there any daner of reactive violence aainst him.

)o s"ecific individual *as targeted in the allegedly defamatory *ords "rinted onCohen>s ac%et . 'he conviction could only be justified by CaliforniaJs desire to exercisethe broad power in preservin the cleanliness of discourse in the public sphere, whichthe .-. -upreme Court refused to rant to the -tate, holdin that no objectivedistinctions can be made between vular and nonvular speech, and that the emotiveelements of speech are just as essential in the exercise of this riht as the purelyconitive. As 0r. *ustice >arlan so elo8uently wrote 5 @)ne manJs vularity is another manJs lyric x x x words are often chosen as much for their emotive as their conitiveforce.5&( !ith Cohen, the .-. -upreme Court finally laid the Constitutional foundationfor judicial protection of provocative and potentially offensive speech.

-imilarly, "beou% %'ee&$ "% #o o#9er ou(%"e ($e F"r%( A+e#+e#( 'ro(e&("o#.O#y o#e %+a '"e&e o) ($e T!o-Class Theor, "# Cha#lins?, %ur;";e% .S.&our(% &o#("#ue (o (rea( Dob%&e#eD %'ee&$ a% #o( 7"($"# ($e 'ro(e&("o# o) ($e

F"r%( A+e#+e#( a( a. "($ re%'e&( (o ($e D)"9$("#9 7or%D o&(r"#e, 7$"e "(re+a"#% a";e "( 7a% +o")"e by ($e &urre#( r"9orou% &ear a# 're%e#( a#9er (e%(.&# 'hus, in Cohen the .-. -upreme Court in applyin the test held that therewas no showin that CohenJs jac"et bearin the words 5:uc" the <raft5 hadthreatened to provo"e imminent violenceL and that protectin the sensibilities of onloo"ers was not sufficiently compellin interest to restrain CohenJs speech.

Beauharnais, which closely followed the Cha"lins%y doctrine, suffered the same fateas Cha"lins%y . Indeed, when Beauharnais was decided in #?+$, the 'wo1Class'heory was still flourishin. !hile concededly the .-. >ih 'ribunal did not formallyabandon Beauharnais, the seminal shifts in .-. constitutional jurisprudencesubstantially undercut Beauharnais and seriously undermined what is left of its vitalityas a precedent. Amon the cases that dealt a crushin impact on Beauharnais andrendered it almost certainly a dead letter case law are Branden+urg v. Ohio,&$ and,

aain, Cohen v. California.&% 'hese decisions reconie a much narrower set of In a pluralistic society li"e the hilippines where misinformation about another



, permissible rounds for restrictin speech than did Beauharnais.&&

In Branden+urg , appellant who was a leader of the Fu Flux Flan was convicted under the )hio Criminal -yndicalism -tatute for advocatin the necessity, duty and proprietyof crime, sabotae, violence, or unlawful methods of terrorism as a means of accomplishin industrial or political reformsL and for voluntarily assemblin with aroup formed to teach or advocate the doctrines of criminal syndicalism. Appellantchallened the statute and was sustained by the .-. -upreme Court, holdin thatthe advocacy of illeal action becomes punishable only if such advocacy is directed to inciting or "roducing imminent la*less action and is li%ely to incite or "roduce suchaction.&+ Except in unusual instances, Branden+urg protects the advocacy of lawlessness as lon as such speech is not translated into action.

'he importance of the Branden+urg rulin cannot be overemphasied. rof. -mollaaffirmed that 5Branden&urg +u%( be u#er%(oo a% o;erru"#9 Beauharnais a#e"+"#a("#9 ($e 'o%%"b""(y o) (rea("#9 9rou' "be u#er ($e %a+e F"r%(A+e#+e#( %(a#ar% a% "#";"ua "be.5&7 It may well be considered as one of the lynchpins of the modern doctrine of free speech, which see"s to ive specialprotection to politically relevant speech.

In any case, respondentsJ lac" of cause of action cannot be cured by the filin of aclass suit. As correctly pointed out by 0r. *ustice *ose C. itu durin thedeliberations, 5an element of a class suit is the ade8uacy of representation. Indeterminin the 8uestion of fair and ade8uate representation of members of a class,the court must consider 2a4 whether the interest of the named party is coextensivewith the interest of the other members of the classL 2b4 the proportion of those madeparties as it so bears to the total membership of the classL and, 2c4 any other factor bearin on the ability of the named party to spea" for the rest of the class.&9

'he rules re8uire that courts must ma"e sure that the persons intervenin should besufficiently numerous to fully protect the interests of all concerned. In the presentcontroversy, Islamic <aJwah Council of the hilippines, Inc., see"s in effect to assertthe interests not only of the 0uslims in the hilippines but of the whole 0uslim worldas well. rivate respondents obviously lac" the sufficiency of numbers to representsuch a lobal roupL neither have they been able to demonstrate the identity of their interests with those they see" to represent. nless it can be shown that there can bea safe uaranty that those absent will be ade8uately represented by those present, a

class suit, iven its manitude in this instance, would be unavailin.5&;

3i"ewise on the matter of damaes, we aree that 5moral damaes may be recoveredonly if the plaintiff is able to satisfactorily prove the existence of the factual basis for the damaes and its causal connection with the acts complained of,&? and so it mustbe, as moral damaes althouh incapable of pecuniary estimation are desined not toimpose a penalty but to compensate for injury sustained and actual damaessuffered.+( Exemplary damaes, on the other hand, may only be awarded if claimantis able to establish his riht to moral, temperate, li8uidated or compensatorydamaes.+# nfortunately, neither of the re8uirements to sustain an award for either of these damaes would appear to have been ade8uately established by respondents.5

p y ppindividualJs reliion is as commonplace as self1appointed critics of overnment, itwould be more appropriate to respect the fair criticism of reliious principles, includinthose which may be outraeously appallin, immensely erroneous, or those couchedas fairly informative comments. 'he reater daner in our society is the possibility thatit may encourae the fre8uency of suits amon reliious fundamentalists, whether Christian, 0uslim, >indu, Buddhist, *ewish, or others. 'his would unnecessarily ma"ethe civil courts a battleround to assert their spiritual ideas, and advance their respective reliious aenda.

It need not be stressed that this Court has no power to determine which is proper reliious conduct or beliefL neither does it have the authority to rule on the merits of one reliion over another, nor declare which belief to uphold or cast asunder, for thevalidity of reliious beliefs or values are outside the sphere of the judiciary. -uchmatters are better left for the reliious authorities to address what is rihtfully withintheir doctrine and realm of influence. Courts must be viewpoint1neutral when it comesto reliious matters if only to affirm the neutrality principle of free speech rihts under modern jurisprudence where 5@all ideas are treated e8ual in the eyes of the :irst Amendment even those ideas that are universally condemned and run counter toconstitutional principles.5+$ nder the riht to free speech, 5there is no such thin as afalse idea. >owever pernicious an opinion may seem, we depend for its correction noton the conscience of judes and juries but on the competition of other ideas.5 +%

-enying certiorari and affirmin the appellate court decision would surely create achillin effect on the constitutional uarantees of freedom of speech, of expression,

and of the press.

HEREFORE, the petition is GRAN/E*. 'he assailed <ecision of the Court of Appeals dated $9 Auust #??; is REVERSE* and SE/ ASI*E, and the <ecision of the ='C1Br. &, 0anila, dismissin the complaint for lac" of merit, is REINS/A/E* andAFFIR!E*. No pronouncement as to costs.

SO OR*ERE*.

-avide# :r.# C .: .# &uno# uisum+ing# nares4Santiago# Sandoval4,utierre# Coronaand Calleo# Sr.# :: .# concur.

Mendoa# : .# in the result.

9itug# : .# see concurrin opinion.

&angani+an# : .# joins the dissentin opinion of *ustice A.'. Carpio.

Car"io# : .# see dissentin opinion.

Austria4Martine# : .# see dissentin opinion.

Car"io4Morales# : .# joins the dissentin opinion of *ustice A.'. Carpio.

Acuna# : .# joins the dissentin opinion of *ustice Austria10artine.

!ILLER V. CALIFORNIA

.S. Su're+e Cour(

13 .S. 15 *e&"e u#e 21, 13

A&&EAL 5/OM 37E A&&ELLA3E -E&A/3ME)3# S0&E/6O/ CO0/3 O5 conviction was specifically based on his conduct in causin five unsolicited



#CAL65O/)6A# CO0)3 O5 O/A),E

Sylla+us

Appellant was convicted of mailin unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated inMemoirs v. Massachusetts# %;% . -. &#%, %;% . -. &#; 2plurality opinion4. 'he trialcourt instructed the jury to evaluate the materials by the contemporary communitystandards of California. AppellantJs conviction was affirmed on appeal. In lieu of theobscenity criteria enunciated by the Memoirs plurality, it is held8

#. )bscene material is not protected by the :irst Amendment. /oth v. 0nited States#%+& . -. &97, reaffirmed. A wor" may be subject to state reulation where that wor",ta"en as a whole, appeals to the prurient interest in sexL portrays, in a patentlyoffensive way, sexual conduct specifically defined by the applicable state lawL and,ta"en as a whole, does not have serious literary, artistic, political, or scientific value.p. &#% . -. $%1$&.

$. 'he basic uidelines for the trier of fact must be 2a4 whether 5the averae person,applyin contemporary community standards5 would find that the wor", ta"en as awhole, appeals to the prurient interest, /oth# su"ra# at %+& . -. &;?, 2b4 whether thewor" depicts or describes, in a patently offensive way, sexual conduct specificallydefined by the applicable state law, and 2c4 whether the wor", ta"en as a whole, lac"sserious literary, artistic, political, or scientific value. If a state obscenity law is thus

limited, :irst Amendment values are ade8uately protected by ultimate independentappellate review of constitutional claims when necessary. p. &#% . -. $&1$+.

%. 'he test of 5utterly without redeemin social value5 articulated in Memoirs# su"ra# isrejected as a constitutional standard. p. &#% . -. $&1$+.

&. 'he jury may measure the essentially factual issues of prurient appeal and patentoffensiveness by the standard that prevails in the forum community, and need notemploy a 5national standard.5 p. &#% . -. %(1%&.

acated and remanded.

B=/E=, C.*., delivered the opinion of the Court, in which !>I'E, B3ACF0N,)!E33, and =E>NOI-', **., joined. <)/3A-, *., filed a dissentin opinion,

"ost# p. &#% . -. %9. B=ENNAN, *., filed a dissentin opinion, in which -'E!A='and 0A=->A33, **., joined, "ost# p. &#% . -. &9.

!R. CHIEF S/ICE RGER delivered the opinion of the Court.

'his is one of a roup of 5obscenity1pornoraphy5 cases bein reviewed by the Courtin a reexamination of standards enunciated in earlier cases involvin what 0r. *ustice>arlan called 5the intractable obscenity problem.5 6nterstate Circuit# 6nc. v. -allas# %?(. -. 797, %?( . -. 9(& 2#?7;4 2concurrin and dissentin4.

Appellant conducted a mass mailin campain to advertise the sale of illustratedboo"s, euphemistically called 5adult5 material. After a jury trial, he was convicted of violatin California enal Code R %##.$2a4, a misdemeanor, by "nowinly distributinobscene matter, @# and the Appellate <epartment, -uperior Court of California,

County of )rane, summarily affirmed the judment without opinion. AppellantJs

p y advertisin brochures to be sent throuh the mail in an envelope addressed to arestaurant in Newport Beach, California. 'he envelope was opened by the manaer of the restaurant and his mother. 'hey had not re8uested the brochuresL theycomplained to the police.

'he brochures advertise four boo"s entitled 5Intercourse,5 50an1!oman,5 5-ex)ries Illustrated,5 and 5An Illustrated >istory of ornoraphy,5 and a film entitled50arital Intercourse.5 !hile the brochures contain some descriptive printed material,primarily they consist of pictures and drawins very explicitly depictin men andwomen in roups of two or more enain in a variety of sexual activities, withenitals often prominently displayed.

I

'his case involves the application of a -tateJs criminal obscenity statute to a situationin which sexually explicit materials have been thrust by aressive sales action uponunwillin recipients who had in no way indicated any desire to receive such materials.'his Court has reconied that the -tates have a leitimate interest in prohibitindissemination or exhibition of obscene material @$ when the mode of disseminationcarries with it a sinificant daner of offendin the sensibilities of unwillin recipientsor of exposure to juveniles. Stanley v. ,eorgia# %?& . -. ++9, %?& . -. +79 2#?7?4L,ins+erg v. )e* or%# %?( . -. 7$?, %?( . -. 7%917&% 2#?7;4L 6nterstate Circuit#6nc. v. -allas# su"ra# at %?( . -. 7?(L /edru" v. )e* or%# %;7 . -. 979, %;7 . -.97? 2#?794L :aco+ellis v. Ohio# %9; . -. #;&, %9; . -. #?+ 2#?7&4. See /a+e v.Washington# &(+ . -. %#%, &(+ . -. %#9 2#?9$4 2B=/E=, C.*., concurrin4L0nited States v. /eidel# &($ . -. %+#, &($ . -. %7(1%7$ 2#?9#4 2opinion of 0A=->A33, *.4L :ose"h Burstyn# 6nc. v. Wilson# %&% . -. &?+, %&% . -. +($ 2#?+$4LBreard v. Alexandria# %&# . -. 7$$, %&# . -. 7&& 7&+ 2#?+#4L $ovacs v. Coo"er# %%7. -. 99, %%7 . -. ;;1;? 2#?&?4L &rince v. Massachusetts# %$# . -. #+;, %$# . -.#7?1#9( 2#?&&4. Cf. Butler v. Michigan# %+$ . -. %;(, %+$ . -. %;$1%;% 2#?+94L&u+lic 0tilities Comm>n v. &olla%# %&% . -. &+#, %&% . -. &7&1&7+ 2#?+$4 It is in thiscontext that we are called on to define the standards which must be used to identifyobscene material that a -tate may reulate without infrinin on the :irst Amendmentas applicable to the -tates throuh the :ourteenth Amendment.

'he dissent of 0=. *-'ICE B=ENNAN reviews the bac"round of the obscenityproblem, but since the Court now underta"es to formulate standards more concrete

than those in the past, it is useful for us to focus on two of the landmar" cases in thesomewhat tortured history of the CourtJs obscenity decisions. In /oth v. 0nited States# %+& . -. &97 2#?+94, the Court sustained a conviction under a federal statutepunishin the mailin of 5obscene, lewd, lascivious or filthy . . .5 materials. 'he "ey tothat holdin was the CourtJs rejection of the claim that obscene materials wereprotected by the :irst Amendment. :ive *ustices joined in the opinion statin

5All ideas havin even the slihtest redeemin social importance 11unorthodox ideas, controversial ideas, even ideas hateful to the prevailinclimate of opinion 11 have the full protection of the @:irst Amendmentuaranties, unless excludable because they encroach upon the limited areaof more important interests. But implicit in the history of the :irst Amendmentis the rejection of obscenity as utterly without redeemin socialimportance. . . . 'his is the same judment expressed by this Court in

Cha"lins%y v. )e* 7am"shire# %#+ . -. +7;, %#+ . -. +9#1+9$ 5

5. . . 'here are certain well defined and narrowly limited classes of speech, infrinement on enuinely serious literary, artistic, political, or scientific expression.










































































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https://supreme.justia.com/us/315/568/case.html#571

















































the prevention and punishment of which have never been thouht to raiseany Constitutional problem. 3hese include the le*d and o+scene. . . . 6t has+een *ell o+served that such utterances are no essential "art of any ex"osition of ideas# and are of such slight social value as a ste" to truth that any +enefit that may +e derived from them is clearly out*eighed +y thesocial interest in order and morality. . . .5 @Emphasis by Court in /othopinion.

5!e hold that obscenity is not within the area of constitutionally protectedspeech or press.5 %+& .-. at %+& . -. &; ;+ 2footnotes omitted4.

Nine years later, in Memoirs v. Massachusetts# %;% . -. &#% 2#?774, the Courtveered sharply away from the /oth concept and, with only three *ustices in theplurality opinion, articulated a new test of obscenity. 'he plurality held that, under the/oth definition,

5as elaborated in subse8uent cases, three elements must coalesce it mustbe established that 2a4 the dominant theme of the material, ta"en as a whole,appeals to a prurient interest in sexL 2b4 the material is patently offensivebecause it affronts contemporary community standards relatin to thedescription or representation of sexual mattersL and 2c4 the material is utterlywithout redeemin social value.5 6d. at %;% . -. &#;.

'he sharpness of the brea" with /oth# represented by the third element of the

Memoirs test and emphasied by 0=. *-'ICE !>I'EJs dissent, id. at %;% . -.&7(1&7$, was further underscored when the Memoirs plurality went on to state

5'he -upreme *udicial Court erred in holdin that a boo" need not beJun8ualifiedly worthless before it can be deemed obscene.J A boo" cannot beproscribed unless it is found to be utterly without redeemin social value.5 6d.at %;% . -. &#? 2emphasis in oriinal4.

!hile /oth presumed 5obscenity5 to be 5utterly without redeemin social importance,5Memoirs re8uired that to prove obscenity it must be affirmatively established that thematerial is 5utterly without redeemin social value.5 'hus, even as they repeated thewords of /oth# the Memoirs plurality produced a drastically altered test that called onthe prosecution to prove a neative, i.e.# that the material was 5utterly withoutredeemin social value5 11 a burden virtually impossible to dischare under our

criminal standards of proof. -uch considerations caused 0r. *ustice >arlan to wonder if the 5utterly without redeemin social value5 test had any meanin at all. SeeMemoirs v. Massachusetts# id. at %;% . -. &+? 2>arlan, *., dissentin4. See also id.at %;% . -. &7# 2!>I'E, *., dissentin4L 0nited States v. ,roner# &9? :.$d +99,+9?+;# 2CA+ #?9%4.

Apart from the initial formulation in the /oth case, no majority of the Court has at anyiven time been able to aree on a standard to determine what constitutes obscene,pornoraphic material subject to reulation under the -tatesJ police power. See# e.g.#/edru" v. )e* or%# %;7 .-. at %;7 . -. 99(199#. !e have seen 5a variety of viewsamon the members of the Court unmatched in any other course of constitutionaladjudication.5 6nterstate Circuit# 6nc. v. -allas# %?( .-. at %?( . -. 9(&19(+ 2>arlan,*., concurrin and dissentin4 2 omitted4. @% 'his is not remar"able, for in the area of

freedom of speech and press the courts must always remain sensitive to any

'his is an area in which there are few eternal verities.

'he case we now review was tried on the theory that the California enal Code R %##approximately incorporates the three1stae Memoirs test, su"ra. But now theMemoirs test has been abandoned as unwor"able by its author, @& and no 0ember of the Court today supports the Memoirs formulation.

II

'his much has been cateorically settled by the Court, that obscene material is

unprotected by the :irst Amendment. $ois v. Wisconsin# &(; . -. $$? 2#?9$4L 0nited States v. /eidel# &($ .-. at &($ . -. %+&L /oth v. 0nited States# su"ra# at %+& . -.&;+. @+ 5'he :irst and :ourteenth Amendments have never been treated asabsolutes @ omitted.5 Breard v. Alexandria# %&# .-. at %&# . -. 7&$, and casescited. See 3imes 5ilm Cor". v. Chicago# %7+ . -. &%, %7+ . -. &91+( 2#?7#4L :ose"hBurstyn# 6nc. v. Wilson# %&% .-. at %&% . -. +($. !e ac"nowlede, however, theinherent daners of underta"in to reulate any form of expression. -tate statutesdesined to reulate obscene materials must be carefully limited. See 6nterstateCircuit# 6nc. v. -allas# su"ra# at %?( . -. 7;$17;+. As a result, we now confine thepermissible scope of such reulation to wor"s which depict or describe sexualconduct. 'hat conduct must be specifically defined by the applicable state law, aswritten or authoritatively construed. @7 A state offense must also be limited to wor"swhich, ta"en as a whole, appeal to the prurient interest in sex, which portray sexualconduct in a patently offensive way, and which, ta"en as a whole, do not have seriousliterary, artistic, political, or scientific value.

'he basic uidelines for the trier of fact must be 2a4 whether 5the averae person,applyin contemporary community standards5 would find that the wor", ta"en as awhole, appeals to the prurient interest, $ois v. Wisconsin# su"ra# at &(; . -. $%(,8uotin /oth v. 0nited States# su"ra# at %+& . -. &;?L 2b4 whether the wor" depictsor describes, in a patently offensive way, sexual conduct specifically defined by theapplicable state lawL and 2c4 whether the wor", ta"en as a whole, lac"s seriousliterary, artistic, political, or scientific value. !e do not adopt as a constitutionalstandard the 5utterly without redeemin social value5 test of Memoirs v.Massachusetts# %;% .-. at %;% . -. &#?L that concept has never commanded theadherence of more than three *ustices at one time. @9 See su"ra at &#% . -. $#. If astate law that reulates obscene material is thus limited, as written or construed, the

:irst Amendment values applicable to the -tates throuh the :ourteenth Amendmentare ade8uately protected by the ultimate power of appellate courts to conduct anindependent review of constitutional claims when necessary. See $ois v. Wisconsin#su"ra# at &(; . -. $%$L Memoirs v. Massachusetts# su"ra# at %;% . -. &+?1&7(2>arlan, *., dissentin4L :aco+ellis v. Ohio# %9; .-. at $(& 2>arlan, *., dissentin4L)e* or% 3imes Co. v. Sullivan# %97 . -. $+&, %97 . -. $;&1$;+ 2#?7&4L /oth v.0nited States# su"ra# at %+& . -. &?91&?; 2>arlan, *., concurrin and dissentin4.

!e emphasie that it is not our function to propose reulatory schemes for the -tates.'hat must await their concrete leislative efforts. It is possible, however, to ive a fewplain examples of what a state statute could define for reulation under part 2b4 of thestandard announced in this opinion, su"ra8

2a4 atently offensive representations or descriptions of ultimate sexual acts, normal

or perverted, actual or simulated.

2b4 atently offensive representations or descriptions of masturbation, excretory ample testimony to the burden that has been placed upon this Court,5 he 8uite rihtly














































































functions, and lewd exhibition of the enitals.

-ex and nudity may not be exploited without limit by films or pictures exhibited or soldin places of public accommodation any more than live sex and nudity can beexhibited or sold without limit in such public places. @; At a minimum, prurient,patently offensive depiction or description of sexual conduct must have seriousliterary, artistic, political, or scientific value to merit :irst Amendment protection. See$ois v. Wisconsin# su"ra# at &(; . -. $%(1$%$L /oth v. 0nited States# su"ra# at %+&. -. &;9L 3hornhill v. Ala+ama# %#( . -. ;;, %#( . -. #(#1#($ 2#?&(4. :or example, medical boo"s for the education of physicians and related personnel

necessarily use raphic illustrations and descriptions of human anatomy. In resolvinthe inevitably sensitive 8uestions of fact and law, we must continue to rely on the jurysystem, accompanied by the safeuards that judes, rules of evidence, presumptionof innocence, and other protective features provide, as we do with rape, murder, anda host of other offenses aainst society and its individual members. @?

0=. *-'ICE B=ENNAN, author of the opinions of the Court, or the pluralityopinions, in /oth v. 0nited States# su"ra< :aco+ellis v. Ohio# su"ra< ,in+urg v. 0nited States# %;% . -. &7% 2#?774, Mish%in v. )e* or%# %;% . -. +($ 2#?774L andMemoirs v. Massachusetts# su"ra# has abandoned his former position and nowmaintains that no formulation of this Court, the Conress, or the -tates canade8uately distinuish obscene material unprotected by the :irst Amendment fromprotected expression, &aris Adult 3heatre 6 v. Slaton# "ost# p. &#% . -. 9%

2B=ENNAN, *., dissentin4. aradoxically, 0=. *-'ICE B=ENNAN indicates thatsuppression of unprotected obscene material is permissible to avoid exposure tounconsentin adults, as in this case, and to juveniles, althouh he ives no indicationof how the division between protected and nonprotected materials may be drawn withreater precision for these purposes than for reulation of commercial exposure toconsentin adults only. Nor does he indicate where in the Constitution he finds theauthority to distinuish between a willin 5adult5 one month past the state law ae of majority and a willin 5juvenile5 one month youner.

nder the holdins announced today, no one will be subject to prosecution for thesale or exposure of obscene materials unless these materials depict or describepatently offensive 5hard core5 sexual conduct specifically defined by the reulatinstate law, as written or construed. !e are satisfied that these specific prere8uisiteswill provide fair notice to a dealer in such materials that his public and commercial

activities may brin prosecution. See /oth v. 0nited States# su"ra# at %+& . -. &?#1&?$. Cf. ,ins+erg v. )e* or%# %?( .-. at %?( . -. 7&%. @#( If the inability to definereulated materials with ultimate, od1li"e precision altoether removes the power of the -tates or the Conress to reulate, then 5hard core5 pornoraphy may beexposed without limit to the juvenile, the passerby, and the consentin adult ali"e, as,indeed, 0=. *-'ICE <)/3A- contends. As to 0=. *-'ICE <)/3A-Jposition, see 0nited States v. 3hirty4seven &hotogra"hs# &($ . -. %7%, &($ . -.%9?1%;( 2#?9#4 2Blac", *., joined by <)/3A-, *., dissentin4L ,in+urg v. 0nited States# su"ra# at %;% . -. &97, %;% . -. &?#1&?$ 2Blac", *., and <)/3A-, *.,dissentin4L :aco+ellis v. Ohio# su"ra# at %9; . -. #?7 2Blac", *., joined by<)/3A-, *., concurrin4L /oth# su"ra# at %+& . -. +(;1+#& 2<)/3A-, *.,dissentin4. In this belief, however, 0=. *-'ICE <)/3A- now stands alone.

0=. *-'ICE B=ENNAN also emphasies 5institutional stress5 in justification of his

chane of view. Notin that 5@the number of obscenity cases on our doc"et ives

remar"s that the examination of contested materials 5is hardly a source of edificationto the members of this Court.5 &aris Adult 3heatre 6 v. Slaton# "ost# at &#% . -. ?$,&#% . -. ?%. >e also notes, and we aree, that 5uncertainty of the standards createsa continuin source of tension between state and federal courts. . . .5 5'he problemis . . . that one cannot say with certainty that material is obscene until at least fivemembers of this Court, applyin inevitably obscure standards, have pronounced itso.5 6d. at &#% . -. ?%, &#% . -. ?$.

It is certainly true that the absence, since /oth# of a sinle majority view of this Courtas to proper standards for testin obscenity has placed a strain on both state and

federal courts. But today, for the first time since /oth was decided in #?+9, a majorityof this Court has areed on concrete uidelines to isolate 5hard core5 pornoraphyfrom expression protected by the :irst Amendment. Now we may abandon the casualpractice of /edru" v. )e* or%# %;7 . -. 979 2#?794, and attempt to provide positiveuidance to federal and state courts ali"e.

'his may not be an easy road, free from difficulty. But no amount of 5fatiue5 shouldlead us to adopt a convenient 5institutional5 rationale 11 an absolutist, 5anythin oes5view of the :irst Amendment 11 because it will lihten our burdens. @## 5-uch anabneation of judicial supervision in this field would be inconsistent with our duty touphold the constitutional uarantees.5 :aco+ellis v. Ohio# su"ra# at %9; . -. #;91#;;2opinion of B=ENNAN, *.4. Nor should we remedy 5tension between state and federalcourts5 by arbitrarily deprivin the -tates of a power reserved to them under the

Constitution, a power which they have enjoyed and exercised continuously frombefore the adoption of the :irst Amendment to this day. See /oth v. 0nited States#su"ra# at %+& . -. &;$1&;+. 5)ur duty admits of no Jsubstitute for facin up to thetouh individual problems of constitutional judment involved in every obscenitycase.J @/oth v. 0nited States# su"ra# at %+& . -. &?;L see Manual Enter"rises# 6nc. v.-ay# %9( . -. &9;, %9( . -. &;; 2opinion of >arlan, *.4 @:ootnote omitted.5:aco+ellis v. Ohio# su"ra# at %9; . -. #;; 2opinion of B=ENNAN, *.4.

III

nder a National Constitution, fundamental :irst Amendment limitations on thepowers of the -tates do not vary from community to community, but this does notmean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the 5prurient interest5 or is 5patently offensive.5 'hese are

essentially 8uestions of fact, and our Nation is simply too bi and too diverse for thisCourt to reasonably expect that such standards could be articulated for all +( -tatesin a sinle formulation, even assumin the prere8uisite consensus exists. !hen triersof fact are as"ed to decide whether 5the averae person, applyin contemporarycommunity standards5 would consider certain materials 5prurient,5 it would beunrealistic to re8uire that the answer be based on some abstract formulation. 'headversary system, with lay jurors as the usual ultimate factfinders in criminalprosecutions, has historically permitted triers of fact to draw on the standards of their community, uided always by limitin instructions on the law. 'o re8uire a -tate tostructure obscenity proceedins around evidence of a national 5community standard5would be an exercise in futility.

As noted before, this case was tried on the theory that the California obscenity statutesouht to incorporate the tripartite test of Memoirs. 'his, a 5national5 standard of :irst

Amendment protection enumerated by a plurality of this Court, was correctly rearded

at the time of trial as limitin state prosecution under the controllin case law. 'he standards of the -tate of California5 serves this protective purpose and is














































































jury, however, was explicitly instructed that, in determinin whether the 5dominanttheme of the material as a whole . . . appeals to the prurient interest,5 and, indeterminin whether the material 5oes substantially beyond customary limits of candor and affronts contemporary community standards of decency,5 it was to apply5contemporary community standards of the -tate of Cali fornia.5

<urin the trial, both the prosecution and the defense assumed that the relevant5community standards5 in ma"in the factual determination of obscenity were those of the -tate of California, not some hypothetical standard of the entire nited -tates of America. <efense counsel at trial never objected to the testimony of the -tateJs expert

on community standards @#$ or to the instructions of the trial jude on 5state1wide5standards. )n appeal to the Appellate <epartment, -uperior Court of California,County of )rane, appellant for the first time contended that application of state,rather than national, standards violated the :i rst and :ourteenth Amendments.

!e conclude that neither the -tateJs alleed failure to offer evidence of 5nationalstandards,5 nor the trial courtJs chare that the jury consider state communitystandards, were constitutional errors. Nothin in the :irst Amendment re8uires that a jury must consider hypothetical and unascertainable 5national standards5 whenattemptin to determine whether certain materials are obscene as a matter of fact. 0r.Chief *ustice !arren pointedly commented in his dissent in :aco+ellis v. Ohio# su"ra#at %9; . -. $((

5It is my belief that, when the Court said in /oth that obscenity is to bedefined by reference to Jcommunity standards,J it meant communitystandards 11 not a national standard, as is sometimes arued. I believe thatthere is no provable Jnational standard.J . . . At all events, this Court has notbeen able to enunciate one, and it would be unreasonable to expect localcourts to divine one.5

It is neither realistic nor constitutionally sound to read the :irst Amendment asre8uirin that the people of 0aine or 0ississippi accept public depiction of conductfound tolerable in 3as eas, or New Por" City. @#% See 7oyt v. Minnesota# %?? .-.at +$&1+$+ 2#?9(4 2B3ACF0N, *., dissentin4L Wal%er v. Ohio# %?; .-. at &%&2#?9(4 2B=/E=, C.*., dissentin4L id. at &%&1&%+ 2>arlan, *., dissentin4L Cain v.$entuc%y# %?9 . -. %#? 2#?9(4 2B=/E=, C.*., dissentin4L id. at %?9 . -. %#?1%$(2>arlan, *., dissentin4L 0nited States v. ,roner# &9? :.$d at +;#1+;%L )J0eara H

-haffer, )bscenity in 'he -upreme Court A Note on :aco+ellis v. Ohio# &( Notre<ame 3aw. #, 719 2#?7&4. See also Memoirs v. Massachusetts# %;% .-. at %;% . -.&+; 2>arlan, *., dissentin4L :aco+ellis v. Ohio# su"ra# at %9; . -. $(%1$(& 2>arlan,*., dissentin4L /oth v. 0nited States# su"ra# at %+& . -. +(+1+(7 2>arlan, *.,concurrin and dissentin4. eople in different -tates vary in their tastes andattitudes, and this diversity is not to be stranled by the absolutism of imposeduniformity. As the Court made clear in Mish%in v. )e* or%# %;% .-. at %;% . -.+(;1+(?, the primary concern with re8uirin a jury to apply the standard of 5theaverae person, applyin contemporary community standards5 is to be certain that,so far as material is not aimed at a deviant roup, it will be juded by its impact on anaverae person, rather than a particularly susceptible or sensitive person 11 or indeeda totally insensitive one. See /oth v. 0nited States# su"ra# at %+& . -. &;?. Cf. thenow discredited test in /egina v. 7ic%lin# @#;7; 3.=. % O.B. %7(. !e hold that there8uirement that the jury evaluate the materials with reference to 5contemporary

constitutionally ade8uate. @#&

IV

'he dissentin *ustices sound the alarm of repression. But, in our view, to e8uate thefree and robust exchane of ideas and political debate with commercial exploitation of obscene material demeans the rand conception of the :irst Amendment and its hihpurposes in the historic strule for freedom. It is a 5misuse of the reat uarantees of free speech and free press. . . .5 Breard v. Alexandria# %&# .-. at %&# . -. 7&+. 'he:irst Amendment protects wor"s which, ta"en as a whole, have serious literary,

artistic, political, or scientific value, reardless of whether the overnment or amajority of the people approve of the ideas these wor"s represent. 5'he protectioniven speech and press was fashioned to assure unfettered interchane of ideas for the brinin about of political and social chanes desired by the people,5 /oth v.0nited States# su"ra# at %+& . -. &;& 2emphasis added4. See $ois v. Wisconsin# &(;.-. at &(; . -. $%(1$%$L 3hornhill v. Ala+ama# %#( .-. at %#( . -. #(#1#($. Butthe public portrayal of hard1core sexual conduct for its own sa"e, and for the ensuincommercial ain, is a different matter. @#+

'here is no evidence, empirical or historical, that the stern #?th century Americancensorship of public distribution and display of material relatin to sex, see /oth v.0nited States# su"ra# at %+& . -. &;$1&;+, in any way limited or affected expressionof serious literary, artistic, political, or scientific ideas. )n the contrary, it is beyond any8uestion that the era followin 'homas *efferson to 'heodore =oosevelt was an5extraordinarily viorous period5 not just in economics and politics, but in +elles lettresand in 5the outlyin fields of social and political philosophies.5 @ #7 !e do not see theharsh hand of censorship of ideas 11 ood or bad, sound or unsound 11 and5repression5 of political liberty lur"in in every state reulation of commercialexploitation of human interest in sex.

0=. *-'ICE B=ENNAN finds 5it is hard to see how state1ordered reimentation of our minds can ever be forestalled.5 &aris Adult 3heatre 6 v. Slaton# "ost# at &#% . -.##( 2B=ENNAN, *., dissentin4. 'hese doleful anticipations assume that courtscannot distinuish commerce in ideas, protected by the :irst Amendment, fromcommercial exploitation of obscene material. 0oreover, state reulation of hard1corepornoraphy so as to ma"e it unavailable to nonadults, a reulation which 0=.*-'ICE B=ENNAN finds constitutionally permissible, has all the elements of

5censorship5 for adultsL indeed even more riid enforcement techni8ues may becalled for with such dichotomy of reulation. See 6nterstate Circuit# 6nc. v. -allas# %?(.-. at %?( . -. 7?(. @ #9 )ne can concede that the 5sexual revolution5 of recentyears may have had useful byproducts in stri"in layers of prudery from a subjectlon irrationally "ept from needed ventilation. But it does not follow that no reulationof patently offensive 5hard core5 materials is needed or permissibleL civilied peopledo not allow unreulated access to heroin because it is a derivative of medicinalmorphlne.

In sum, we 2a4 reaffirm the /oth holdin that obscene material is not protected by the:irst AmendmentL 2b4 hold that such material can be reulated by the -tates, subjectto the specific safeuards enunciated above, without a showin that the material is5utterly without redeemin social value5L and 2c4 hold that obscenity is to bedetermined by applyin 5contemporary community standards,5 see $ois v. Wisconsin#

su"ra# at &(; . -. $%(, and /oth v. 0nited States# su"ra# at %+& . -. &;?, not

5national standards.5 'he judment of the Appellate <epartment of the -uperior C t ) C t C lif i i t d d th d d t th t t f

by this opinion. See 0nited States v. ?G G4ft. /eels of 5ilm# "ost at &#% . -. #%( n.9



























































Court, )rane County, California, is vacated and the case remanded to that court for further proceedins not inconsistent with the :irst Amendment standards established

9.

9acated and remanded.

I/A V. CA

EN BANC

G.R. No. 80806 O&(ober 5, 18

LEO I/A o"#9 bu%"#e%% u#er ($e #a+e a# %(ye o) INO LAO,petitioner,vs./HE COR/ OF AEALS, RA!ON AGA/SING, a# NARCISO CARERA,respondents.

SAR!IEN/O, J.:

'he petitioner, publisher of &inoy &lay+oy , a 5menJs maaine5, see"s the review of the decision of the Court of Appeals, 1 rejectin his appeal from the decision of the=eional 'rial Court, dismissin his complaint for injunctive relief. >e invo"es, inparticular, the uaranty aainst unreasonable searches and seiures of theConstitution, as well as its prohibition aainst deprivation of property without due

process of law. 'here is no controversy as to the facts. !e 8uote

)n <ecember # and %, #?;%, pursuin an Anti1-mut Campain initiated by the 0ayor of the City of 0anila, =amon <. Baatsin, elements of the -pecial Anti1Narcotics/roup, Auxilliary -ervices Bureau, !estern olice <istrict, IN of the 0etropolitanolice :orce of 0anila, seied and confiscated from dealers, distributors, newsstandowners and peddlers alon 0anila sidewal"s, maaines, publications and other readin materials believed to be obscene, pornoraphic and indecent and later burned the seied materials in public at the niversity belt alon C.0. =ecto Avenue,0anila, in the presence of 0ayor Baatsin and several officers and members of various student oraniations.

Amon the publications seied, and later burned, was 5inoy layboy5 maainespublished and co1edited by plaintiff 3eo ita.

)n <ecember 9, #?;%, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction aainst 0ayor Baatsin and Narcisco Cabrera, assuperintendent of !estern olice <istrict of the City of 0anila, see"in to enjoinandDor restrain said defendants and their aents from confiscatin plaintiffsmaaines or from otherwise preventin the sale or circulation thereof claimin thatthe maaine is a decent, artistic and educational maaine which is not "er seobscene, and that the publication is protected by the Constitutional uarantees of freedom of speech and of the press.

By order dated <ecember ;, # ?;% the Court set the hearin on the petition for preliminary injunction on <ecember #&,#?;% and ordered the defendants to showcause not later than <ecember #%, #?;% why the writ prayed for should not beranted.

)n <ecember #$, #?;%, plaintiff filed an rent 0otion for issuance of a temporaryrestrainin order. aainst indiscriminate seiure, confiscation and burnin of plaintiffJs5inoy layboy5 0aaines, pendin hearin on the petition for preliminary injunctionin view of 0ayor BaatsinJs pronouncement to continue the Anti1-mut Campain.'he Court ranted the temporary restrainin order on <ecember #&, #?;%.

In his Answer and )pposition filed on <ecember $9,#?;% defendant 0ayor Baatsinadmitted the confiscation and burnin of obscence readin materials on <ecember #and %, #?;%, but claimed that the said materials were voluntarily surrendered by thevendors to the police authorities, and that the said confiscation and seiure was 2sic4underta"en pursuant to .<. No. ?7(, as amended by .<. No. ?7?, which amended Article $(# of the =evised enal Code. In opposin the plaintiffs application for a writof preliminary injunction, defendant pointed out that in that anti1 smut campainconducted on <ecember # and %, #?;%, the materials confiscated beloned to themaaine stand owners and peddlers who voluntarily surrendered their readinmaterials, and that the plaintiffs establishment was not raided.

'he other defendant, !< -uperintendent, Narcisco Cabrera, filed no answer.

)n *anuary +,#?;&, plaintiff filed his 0emorandum in support of the issuance of the

writ of preliminary injunction, raisin the issue as to 5whether or not the defendantsandDor their aents can without a court order confiscate or seie plaintiffs maainebefore any judicial findin is made on whether said maaine is obscene or not5.

'he restrainin order issued on <ecember #&,#?;% havin lapsed on *anuary %,#?;&,the plaintiff filed an urent motion for issuance of another restrainin order, which wasopposed by defendant on the round that issuance of a second restrainin order would violate the =esolution of the -upreme Court dated *anuary ##, #?;%, providinfor the Interim =ules =elative to the Implementation of Batas ambansa Bl. #$?,which provides that a temporary restrainin order shall be effective only for twentydays from date of its issuance.

)n *anuary ?, #?;& defendant filed his Comment andDor =ejoinder 0emorandum insupport of his opposition to the issuance of a writ of preliminary injunction.

)n *anuary ##, #?;&, the trial court issued an )rder settin the case for hearin on*anuary #7, #?;& 5for the parties to adduce evidence on the 8uestion of whether thepublication Jinoy layboy 0aaine alleed 2sic4 seied, confiscated andDor burnedby the defendants, are obscence per se or not5.

)n *anuary #7, #?;&, the Court issued an order rantin plaintiffs motion to be iventhree days 5to file a reply to defendantsJ opposition dated *anuary ?, #?;&, servin acopy thereof to the counsel for the defendants, who may file a rejoinder within thesame period from receipt, after which the issue of reliminary Injunction shall beresolved5.

laintiffJs supplemental 0emorandum was filed on *anuary #;, #?;&. <efendant filedhis Comment on plaintiff s supplemental 0emorandum on *anuary $(, #?;&, and

plaintiff filed his 5=eply10emorandum5 to defendantsJ Comment on *anuary $+, #?;&.

)n :ebruary %, #?;&, the trial court promulated the )rder appealed from denyinth ti f it f li i i j ti d di i i th f l " f

to say that a piece of literature has a corruptin influence +ecause it is obscene, andi



the motion for a writ of preliminary injunction, and dismissin the case for lac" of merit. 2

'he Appellate Court dismissed the appeal upon the rounds, amon other thins, asfollows

!e cannot 8uarrel with the basic postulate suested by appellant thatseiure of alleedly obscene publications or materials deserves closescrutiny because of the constitutional uarantee protectin the riht toexpress oneself in print 2-ec. ?, Art. I4, and the protection afforded by the

constitution aainst unreasonable searches and seiure 2-ec. %, Art.I4. Itmust be e8ually conceded, however, that freedom of the press is not withoutrestraint as the state has the riht to protect society from pornoraphicliterature that is offensive to public morals, as indeed we have lawspunishin the author, publishers and sellers of obscene publications 2-ec. I , Art. $(#, =evised enal Code, as amended by .<. No. ?7( and .<. No.?7?4. Also well settled is the rule that the riht aainst unreasonablesearches and seiures reconies certain exceptions, as when there isconsent to the search or seiure, 2eople vs. 0alesuui 7% hil. $$4 or search is an incident to an arrest, 2eople vs. eloso, &; hil. #7?L Alvero vs.<ion, 97 hil. 7%94 or is conducted in a vehicle or movable structure 2-eeapa vs. 0ano, $$ -C=A ;+94. 3

'he petitioner now ascribes to the respondent court the followin errors

#. 'he Court of Appeals erred in affirmin the decision of the trial court and,in effect, holdin that the police officers could without any court warrant or order seie and confiscate petitionerJs maaines on the basis simply of their determination that they are obscene.

$. 'he Court of Appeals erred in affirmin the decision of the trial court and,in effect, holdin that the trial court could dismiss the case on its meritswithout any hearin thereon when what was submitted to it for resolutionwas merely the application of petitioner for the writ of preliminary injunction.

'he Court states at the outset that it is not the first time that it is bein as"ed topronounce what 5obscene5 means or what ma"es for an obscene or pornoraphicliterature. Early on, in &eo"le vs. $ottinger , 5 the Court laid down the test, in

determinin the existence of obscenity, as follows 5whether the tendency of thematter chared as obscene, is to deprave or corrupt those whose minds are open tosuch immoral influences and into whose hands a publication or other article charedas bein obscene may fall.5 6 5Another test,5 so $ottinger further declares, 5is thatwhich shoc"s the ordinary and common sense of men as an indecency. 5 $ottinger hastened to say, however, that 5@whether a picture is obscene or indecent mustdepend upon the circumstances of the case, 8 and that ultimately, the 8uestion is tobe decided by the 5judment of the areate sense of the community reached by it.5

Pet $ottinger , in its effort to arrive at a 5conclusive5 definition, succeeded merely ineneraliin a problem that has rown increasinly complex over the years. recisely,the 8uestion is !hen does a publication have a corruptin tendency, or when can it

be said to be offensive to human sensibilitiesS And obviously, it is to be the 8uestion

vice4versa.

Apparently, $ottinger was aware of its own uncertainty because in the same breath, itwould leave the final say to a hypothetical 5community standard5 whatever that is and that the 8uestion must supposedly be juded from case to case.

About three decades later, this Court promulated &eo"le v. ,o &in, 10 a prosecutionunder Article $(# of the =evised enal Code. ,o &in, was also even haier

...!e aree with counsel for appellant in part. If such pictures, sculptures

and paintins are shown in art exhibit and art alleries for the cause of art, tobe viewed and appreciated by people interested in art, there would be nooffense committed. >owever, the pictures here in 8uestion were used notexactly for artJs sa"e but rather for commercial purposes. In other words, thesupposed artistic 8ualities of said pictures were bein commercialied sothat the cause of art was of secondary or minor importance. /ain and profitwould appear to have been the main, if not the exclusive consideration intheir exhibitionL and it would not be surprisin if the persons who went to seethose pictures and paid entrance fees for the privilee of doin so, were notexactly artists and persons interested in art and who enerally o to artexhibitions and alleries to satisfy and improve their artistic tastes, but rather people desirous of satisfyin their morbid curiosity and taste, and lust, andfor love for excitement, includin the youth who because of their immaturityare not in a position to resist and shield themselves from the ill andpervertin effects of these pictures. 11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine l ines haveneither been drawn nor divided. It is easier said than done to say, indeed, that if 5thepictures here in 8uestion were used not exactly for artJs sa"e but rather for commercial purposes,5 12 the pictures are not entitled to any constitutional protection.

It was &eo"le v. &adan y Alova , 13 however, that introduced to hilippine jurisprudence the 5redeemin5 element that should accompany the wor", to save itfrom a valid prosecution. !e 8uote

...!e have had occasion to consider offenses li"e the exhibition of still or

movin pictures of women in the nude, which we have condemned for obscenity and as offensive to morals. In those cases, one miht yet claimthat there was involved the element of artL that connoisseurs of the same,and painters and sculptors miht find inspiration in the showin of pictures inthe nude, or the human body exhibited in sheer na"edness, as models inta+leaux vivants. But an actual exhibition of the sexual act, preceded by actsof lasciviousness, can have no redeemin feature. In it, there is no room for art. )ne can see nothin in it but clear and unmitiated obscenity, indecency,and an offense to public morals, inspirin and causin as it does, nothin butlust and lewdness, and exertin a corruptin influence specially on the youthof the land. ... 1

&adan y Alova, li"e ,o &in, however, raised more 8uestions than answers. :or onethin, if the exhibition was attended by 5artists and persons interested in art and who

enerally o to art exhibitions and alleries to satisfy and improve their artistic tastes,515 could the same leitimately lay claim to 5art5S :or another suppose that the

In the case at bar, there is no challene on the riht of the -tate, in the leitimateexercise of police power to suppress smut provided it is smut :or obvious reasons



15 could the same leitimately lay claim to 5art5S :or another, suppose that theexhibition was so presented that 5connoisseurs of @art, and painters and sculptorsmiht find inspiration,5 16 in it, would it cease to be a case of obscenityS

&adan y Alova# li"e ,o &in also leaves too much latitude for judicial arbitrament,which has permitted an ad li+ of Ideas and 5two1cents worths5 amon judes as towhat is obscene and what is art.

In a much later decision, ,onale v. $ala* $atig+a% , 1 the Court, followin trends inthe nited -tates, adopted the test 5!hether to the averae person, applyin

contemporary standards, the dominant theme of the material ta"en as a wholeappeals to prurient interest.5 18 $ala*4$atig+a% represented a mar"ed departure from$ottinger in the sense that it measured obscenity in terms of the 5dominant theme5 of the wor", rather than isolated passaes, which were central to $ottinger 2althouhboth cases are areed that 5contemporary community standards5 are the final arbitersof what is 5obscene54. $ala*4$atig+a% undertoo" moreover to ma"e the determinationof obscenity essentially a judicial 8uestion and as a conse8uence, to temper the widediscretion $ottinger had iven unto law enforcers.

It is sinificant that in the nited -tates, constitutional law on obscenity continues to journey from development to development, which, states one authoritativecommentator 2with ample sarcasm4, has been as 5unstable as it is unintelliible.5 1

Memoirs v. Massachusettes, 20 a #?77 decision, which characteried obscenity as one

5utterly without any redeemin social value,5 21 mar"ed yet another development.

'he latest word, however, is Miller v. California, 22 which expressly abandonedMassachusettes, and established 5basic uidelines,5 23 to wit 52a4 whether Jtheaverae person, applyin contemporary standardsJ would find the wor", ta"en as awhole, appeals to the prurient interest . . .L 2b4 whether the wor" depicts or describes,in a patently offensive way, sexual conduct specifically defined by the applicable statelawL and 2c4 whether the wor", ta"en as a whole, lac"s serious literary, artistic,political, or scientific value.5 2

2A year later, the American -upreme Court decided 7amling v. 0nited States 25 whichrepeated Miller# and :en%ins v. ,eorgia# 26 yet another reiteration of Miller. :en%ins,curiously, ac8uitted the producers of the motion picture, Carnal $no*ledge, in theabsence of 5enitals5 portrayed on screen, althouh the film hihlihted contemporary

American sexuality.4

'he lac" of uniformity in American jurisprudence as to what constitutes 5obscenity5has been attributed to the reluctance of the courts to reconie the constitutionaldimension of the problem . 2 Apparently, the courts have assumed that 5obscenity5 isnot included in the uaranty of free speech, an assumption that, as we averred, hasallowed a climate of opinions amon maistrates predicated upon arbitrary, if vauetheories of what is acceptable to society. And 5@there is little li"elihood,5 says 'ribe,5that this development has reached a state of rest, or that it will ever do so until theCourt reconies that obscene speech is speech nonetheless, althouh it is subject as in all speech to reulation in the interests of @society as a whole but not inthe interest of a uniform vision of how human sexuality should be rearded andportrayed.5 28

exercise of police power, to suppress smut provided it is smut. :or obvious reasons,smut is not smut simply because one insists it is smut. -o is it e8ually evident thatindividual tastes develop, adapt to wide1ranin influences, and "eep in step with therapid advance of civiliation. !hat shoc"ed our forebears, say, five decades ao, isnot necessarily repulsive to the present eneration. *ames *oyce and <.>. 3awrencewere censored in the thirties yet their wor"s are considered important literature today.2 /oyaJs La Maa desnuda was once banned from public exhibition but now adornsthe worldJs most prestiious museums.

But neither should we say that 5obscenity5 is a bare 2no pun intended4 matter of

opinion. As we said earlier, it is the diverent perceptions of men and women thathave probably compounded the problem rather than resolved it.

!hat the Court is impressin, plainly and simply, is that the 8uestion is not, and hasnot been, an easy one to answer, as it is far from bein a settled matter. !e share'ribeJs disappointment over the discourain trend in American decisional law onobscenity as well as his pessimism on whether or not an 5acceptable5 solution is insiht.

In the final analysis perhaps, the tas" that confronts us is less heroic than rushin to a5perfect5 definition of 5obscenity5, if that is possible, as evolvin standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raisedin the petition.

>owever, this much we have to say.

ndoubtedly, 5immoral5 lore or literature comes within the ambit of free expression,althouh not its protection. In free expression cases, this Court has consistently beenon the side of the exercise of the riht, barrin a 5clear and present daner5 thatwould warrant -tate interference and action. 30 But, so we asserted in /eyes v.Bagatsing , 31 5the +urden to show the existence of rave and imminent daner thatwould justify adverse action ... lies on the. . . [email protected] 32

5'here must be o+ective and convincing# not su+ective or conectural# "roof of theexistence of such clear and "resent danger .5 33 5It is essential for the validity of ...previous restraint or censorship that the ... authority does not rely solely on his o*na""raisal of *hat the "u+lic *elfare# "eace or safety may re;uire.5 3

5'o justify such a limitation, there must be proof of such *eight and sufficiency tosatisfy the clear and "resent danger test .5 35

'he above disposition must not, however, be ta"en as a neat effort to arrive at asolution1so only we may arrive at one1but rather as a serious attempt to put the8uestion in its proper perspective, that is, as a enuine constitutional issue.

It is also sinificant that in his petition, the petitioner asserts constitutional issues,mainly, due process and illeal search and seiure.

As we so stronly stressed in Bagatsing , a case involvin the delivery of a politicalspeech, the presumption is that the speech may validly be said. 'he burden is on the-tate to demonstrate the existence of a daner, a daner that must not only be 2#4clear but also, 2$4 present, to justify -tate action to stop the speech. 0eanwhile, the

/overnment must allow it 2the speech4. It has no choice. >owever, if it acts

notwithstandin that 2absence of evidence of a clear and present daner4, it mustcome to terms with and be held accountable for due process

#. In case the offender is a overnment official or employee who allows theviolations of -ection I hereof the penalty as provided herein shall be



come to terms with, and be held accountable for, due process.

'he Court is not convinced that the private respondents have shown the re8uiredproof to justify a ban and to warrant confiscation of the literature for which mandatoryinjunction had been souht below. :irst of all, they were not possessed of a lawfulcourt order 2#4 findin the said materials to be pornoraphy, and 2$4 authoriin themto carry out a search and seiure, by way of a search warrant.

'he Court of Appeals has no 58uarrel that ... freedom of the press is not withoutrestraint, as the state has the riht to protect society from pornoraphic literature that

is offensive to public morals.5 36 Neither do we. But it brins us bac" to s8uare onewere the 5literature5 so confiscated 5pornoraphic5S 'hat we have laws punishin theauthor, publisher and sellers of obscence publications 2-ec. #, Art. $(#, =evisedenal Code, as amended by .<. No. ?7( and .<. No. ?7?4,5 3 is also fine, but the8uestion, aain, is >as the petitioner been found uilty under the statuteS

'he fact that the former respondent 0ayorJs act was sanctioned by 5police power5 isno license to seie property in disreard of due process. In &hili""ine ServiceEx"orters# 6nc. v. -rilon, 38 !e defined police power as 5state authority to enactleislation that may interfere with personal liberty or property in order to promote theeneral welfare .5 3 residential <ecrees Nos. ?7( and ?7? are, aruably, policepower measures, but they are not, by themselves, authorities for hih1handed acts.'hey do not exempt our law enforcers, in carryin out the decree of the twinpresidential issuances 20r. 0arcosJ4, from the commandments of the Constitution, theriht to due process of law and the riht aainst unreasonable searches and seiures,specifically. -inificantly, the <ecrees themselves lay down procedures for implementation. !e 8uote

-ec. $. -is"osition of the &rohi+ited Articles. 'he disposition of theliterature, films, prints, enravins, sculptures, paintins, or other materialsinvolved in the violation referred to in -ection # hereof 2Art. $(#4, =C asamended4 shall be overned by the followin rules

2a4 pon conviction of the offender, to be forfeited in favor of the/overnment to be destroyed.

2b4 !here the criminal case aainst any violator of this decree results in anac8uittal, the obsceneDimmoral literature, films, prints, enravins,

sculptures, paintins or other materials and articles involved in the violationreferred to in -ection # 2referrin to Art. $(#4 hereof shall nevertheless beforfeited in favor of the overnment to be destroyed, after forfeitureproceedins conducted by the Chief of Constabulary.

2c4 'he person arieved by the forfeiture action of the Chief of Constabularymay, within fifteen 2#+4 days after his receipt of a copy of the decision,appeal the matter to the -ecretary of National <efense for review. 'hedecision of the -ecretary of National <efense shall be final andunappealable. 2-ec. $, < No, ?7( as amended by < No. ?7?.4

-ec. &. Additional enalties. Additional penalties shall be imposed asfollows

violations of -ection I hereof, the penalty as provided herein shall beimposed in the maximum period and, in addition, the accessory penaltiesprovided for in the =evised enal Code, as amended, shall li"ewise beimposed . 0

nder the Constitution, on the other hand

-EC. %. 'he riht of the people to be secure in their persons, houses,papers, and effects aainst unreasonable searches and seiures of whatever nature and for any purpose shall not be violated, and no search

warrant or warrant of arrest shall issue except upon probable cause to bedetermined by the jude, or such other responsible officer as may beauthoried by law, after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularly describinthe place to be searched, and the persons or thins to be seied.

It is basic that searches and seiures may be done only throuh a judicial warrant,otherwise, they become unreasonable and subject to challene. In Burgos v. Chief of Staff# A5& , 3 !e counter1minded the orders of the =eional 'rial Court authoriinthe search of the premises of We 5orum and Metro"olitan Mail , two 0etro 0aniladailies, by reason of a defective warrant. !e have reater reason here to reprobatethe 8uestioned raid, in the complete absence of a warrant, valid or invalid. 'he factthat the instant case involves an obscenity rap ma"es it no different from Burgos, apolitical case, because, and as we have indicated, speech is speech, whether politicalor 5obscene5.

'he Court is not rulin out warrantless searches, as the =ules of Court 2#?7& rev.42the =ules then prevailin4, provide

-EC. #$. Search *ithout *arrant of "ersonarrested. A person charedwith an offense may be searched for danerous weapons or anythin whichmay be used as proof of the commission of the offense.

but as the provision itself suests, the search must have been an incident to a lawfularrest, and the arrest must be on account of a crime committed. >ere, no party hasbeen chared, nor are such chares bein readied aainst any party, under Article$(#, as amended, of the =evised enal Code.

!e reject outriht the arument that 5@there is no constitutional nor leal provisionwhich would free the accused of all criminal responsibility because there had been nowarrant,5 5 and that 5violation of penal law @must be punished.5 6 :or starters, thereis no 5accused5 here to spea" of, who ouht to be 5punished5. -econd, to say that therespondent 0ayor could have validly ordered the raid 2as a result of an anti1smutcampain4 without a lawful search warrant because, in his opinion, 5violation of penallaws5 has been committed, is to ma"e the respondent 0ayor jude, jury, andexecutioner rolled into one. And precisely, this is the very complaint of the petitioner.

!e ma"e this resume.

#. 'he authorities must apply for the issuance of a search warrant from a jude, if intheir opinion, an obscenity rap is in orderL

$. 'he authorities must convince the court that the materials souht to be seied are5obscene5 and pose a clear and present daner of an evil substantive enouh to

'hese do not foreclose, however, defenses under the Constitution or applicablestatutes or remedies aainst abuse of official power under the Civil Code5 or the



obscene , and pose a clear and present daner of an evil substantive enouh towarrant -tate interference and actionL

%. 'he jude must determine whether or not the same are indeed 5obscene5 the8uestion is to be resolved on a case1to1case basis and on >is >onorJs sounddiscretion.

&. If, in the opinion of the court, probable cause exists, it may issue the searchwarrant prayed forL

+. 'he proper suit is then brouht in the court under Article $(# of the =evised enalCodeL

7. Any conviction is subject to appeal. 'he appellate court may assess whether or notthe properties seied are indeed 5obscene5.

statutes, or remedies aainst abuse of official power under the Civil Code or the=evised enal code . 8

HEREFORE, the petition is GRAN/E*. 'he decision of the respondent court isREVERSE* and SE/ ASI*E. It appearin, however, that the maaines subject of the search and seiure ave been destroyed, the Court declines to rant affirmativerelief. 'o that extent, the case is moot and academic.

SO OR*ERE*.

Melencio47errera# Cru# &aras# ,ancayco# &adilla# Bidin# Cortes# ,riño4A;uino#Medialdea and /egalado# ::.# concur.

5ernan 'C.:.(# )arvasa and 5eliciano# ::.# concur in the result.

,utierre# :r.# :.# is on leave.

NE OR V. FERER

.S. Su're+e Cour(

58 .S. *e&"e uy 2, 182

CE/36O/A/6 3O 37E CO0/3 O5 A&&EALS O5 )EW O/$

Sylla+us

A New Por" statute prohibits persons from "nowinly promotin a sexual performanceby a child under the ae of #7 by distributin material which depicts such aperformance. 'he statute defines 5sexual performance5 as any performance thatincludes sexual conduct by such a child, and 5sexual conduct5 is in turn defined asactual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality,masturbation, sado1masochistic abuse, or lewd exhibition of the enitals. =espondentboo"store proprietor was convicted under the statute for sellin films depictin younboys masturbatin, and the Appellate <ivision of the New Por" -upreme Courtaffirmed. 'he New Por" Court of Appeals reversed, holdin that the statute violatedthe :irst Amendment as bein both underinclusive and overbroad. 'he court

reasoned that, in liht of the explicit inclusion of an obscenity standard in acompanion statute bannin the "nowin dissemination of similarly defined material,the statute in 8uestion could not be construed to include an obscenity standard, andtherefore would prohibit the promotion of materials traditionally entitled to protectionunder the :irst Amendment.

7eld8 As applied to respondent and others who distribute similar material, the statutein 8uestion does not violate the :irst Amendment as applied to the -tates throuh the:ourteenth Amendment. p. &+; . -. 9+%199&.

2a4 'he -tates are entitled to reater leeway in the reulation of pornoraphicdepictions of children for the followin reasons 2#4 the leislative judment that theuse of children as subjects of pornoraphic materials is harmful to the physioloical,emotional, and mental health of the child easily passes muster under the :irst

AmendmentL 2$4 the standard of Miller v. California# &#% . -. #+, for determinin what

is leally obscene is not a satisfactory solution to the child pornoraphy problemL 2%4the advertisin and sellin of child pornoraphy provide an economic motive for, andare thus an interal part of, the production of such materials, an activity illealthrouhout the NationL 2&4 the value of permittin live performances and photoraphicreproductions of children enaed in lewd exhibitions is exceedinly modest, if not deminimis< and 2+4 reconiin and classifyin child pornoraphy as a cateory of material outside the :irst AmendmentJs protection is not incompatible with this CourtJs

decisions dealin with what speech is unprotected. !hen a definable class of material, such as that covered by the New Por" statute, bears so heavily andpervasively on the welfare of children enaed in its production, the balance of competin interests is clearly struc", and it is permissible to consider these materialsas without the :irst AmendmentJs protection. p. &+; . -. 9+7197&.

2b4 'he New Por" statute describes a cateory of material the production anddistribution of which is not entitled to :i rst Amendment protection. Accordinly, there isnothin unconstitutionally 5underinclusive5 about the statute, and the -tate is notbarred by the :irst Amendment from prohibitin the distribution of such unprotectedmaterials produced outside the -tate. p. &+; . -. 97&1977.

2c4 Nor is the New Por" statute unconstitutionally overbroad as forbiddin thedistribution of material with serious literary, scientific, or educational value. 'he

substantial overbreadth rule of Broadric% v. O%lahoma# &#% . -. 7(#, applies. 'his isthe paradimatic case of a state statute whose leitimate reach dwarfs its aruablyimpermissible applications.

5@!hatever overbreadth may exist should be cured throuh case1by1case analysis of the fact situations to which @the statuteJs sanctions, assertedly, may not be applied.5

Broadric% v. O%lahoma# su"ra# at &#% . -. 7#+17#7. p. &+; . -. 977199&.

+$ N.P.$d 79&, &$$ N.E.$d +$%, reversed and remanded.

!>I'E, *., delivered the opinion of the Court, in which B=/E=, C.*., and )!E33,=E>NOI-', and )JC)NN)=, **., joined. )JC)NN)=, *., filed a concurrin opinion, "ost# p. &+; . -. 99&. B=ENNAN, *., filed an opinion concurrin in the judment, inwhich 0A=->A33, *., joined, "ost# p. &+; . -. 99+. B3ACF0N, *., concurred in

the result. -'EEN-, *., filed an opinion concurrin in the judment, "ost# p. &+; .- 999

5JromoteJ means to procure, manufacture, issue, sell, ive, provide, lend,mail deliver transfer transmute publish distribute circulate disseminate
































-. 999.

S/ICE HI/E delivered the opinion of the Court.

At issue in this case is the constitutionality of a New Por" criminal statute whichprohibits persons from "nowinly promotin sexual performances by children under the ae of #7 by distributin material which depicts such performances.

I

In recent years, the exploitive use of children in the production of pornoraphy hasbecome a serious national problem. @ # 'he :ederal /overnment and &9 -tates havesouht to combat the problem with statutes specifically directed at the production of child pornoraphy. At least half of such statutes do not re8uire that the materialsproduced be leally obscene. 'hirty1five -tates and the nited -tates Conress havealso passed leislation prohibitin the distribution of such materialsL $( -tates prohibitthe distribution of material depictin children enaed in sexual conduct withoutre8uirin that the material be leally obscene. @ $

New Por" is one of the $(. In #?99, the New Por" 3eislature enacted Article $7% of itsenal 3aw. N.P.enal 3aw, Art. $7% 20cFinney #?;(4. -ection $7%.(+ criminalies asa class C felony the use of a child in a sexual performance

5A person is uilty of the use of a child in a sexual performance if "nowinthe character and content thereof he employs, authories or induces a childless than sixteen years of ae to enae in a sexual performance or bein aparent, leal uardian or custodian of such child, he consents to theparticipation by such child in a sexual performance.5

A 5@sexual performance5 is defined as 5any performance or part thereof whichincludes sexual conduct by a child less than sixteen years of ae.5 R $7%.((2#4.5-exual conduct5 is in turn defined in R $7%.((2%4

5J-exual conductJ means actual or simulated sexual intercourse, deviatesexual intercourse, sexual bestiality, masturbation, sado1masochistic abuse,or lewd exhibition of the enitals.5

A performance is defined as 5any play, motion picture, photoraph or dance5 or 5anyother visual representation exhibited before an audience.5 R $7%.((2&4.

At issue in this case is R $7%.#+, definin a class < felony @ %

5A person is uilty of promotin a sexual performance by a child when,"nowin the character and content thereof, he produces, directs or promotesany performance which includes sexual conduct by a child less than sixteenyears of ae.5

'o 5promote5 is also defined

mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate,present, exhibit or advertise, or to offer or aree to do the same.5 R$7%.((2+4.

A companion provision bans only the "nowin dissemination of obscene material. R$7%.#(.

'his case arose when aul :erber, the proprietor of a 0anhattan boo"storespecialiin in sexually oriented products, sold two films to an undercover policeofficer. 'he films are devoted almost exclusively to depictin youn boys

masturbatin. :erber was indicted on two counts of violatin R $7%.#( and two countsof violatin R $7%.#+, the two New Por" laws controllin dissemination of childpornoraphy. @ & After a jury trial, :erber was ac8uitted of the two counts of promotinan obscene sexual performance, but found uilty of the two counts under R $7%.#+,which did not re8uire proof that the films were obscene. :erberJs convictions wereaffirmed without opinion by the Appellate <ivision of the New Por" -tate -upremeCourt. 9& App.<iv.$d ++;, &$& N.P.-.$d ?79 2#?;(4.

'he New Por" Court of Appeals reversed, holdin that R $7%.#+ violated the :irst Amendment. +$ N.P.$d 79&, &$$ N.E.$d +$% 2#?;#4. 'he court bean by notin that,in liht of R $7%.#(Js explicit inclusion of an obscenity standard, R $7%.#+ could not beconstrued to include such a standard. 'herefore, 5the statute would . . . prohibit thepromotion of materials which are traditionally entitled to constitutional protection fromovernment interference under the :irst Amendment.5 +$ N.P.$d at 79;, &$$ N.E.$d

at +$+. Althouh the court reconied the -tateJs 5leitimate interest in protectin thewelfare of minors5 and noted that this 5interest may transcend :irst Amendmentconcerns,5 id. at 79?, &$$ N.E.$d at +$+1+$7, it nevertheless found two fatal defectsin the New Por" statute. -ection $7%.#+ was underinclusive because it discriminatedaainst visual portrayals of children enaed in sexual activity by not also prohibitinthe distribution of films of other danerous activity. It was also overbroad because itprohibited the distribution of materials produced outside the -tate, as well asmaterials, such as medical boo"s and educational sources, which 5deal withadolescent sex in a realistic but nonobscene manner.5 +$ N.P.$d at 7;#, &$$ N.E.$dat +$7. 'wo judes dissented. !e ranted the -tateJs petition for certiorari, &+& .-.#(+$ 2#?;#4, presentin the sinle 8uestion

5'o prevent the abuse of children who are made to enae in sexual conduct

for commercial purposes, could the New Por" -tate 3eislature, consistentwith the :irst Amendment, prohibit the dissemination of material whichshows children enaed in sexual conduct, reardless of whether suchmaterial is obsceneS5

II

'he Court of Appeals proceeded on the assumption that the standard of obscenityincorporated in R $7%.#(, which follows the uidelines enunciated in Miller v.California# &#% . -. #+ 2#?9%4, @ + constitutes the appropriate line dividin protectedfrom unprotected expression by which to measure a reulation directed at childpornoraphy. It was on the premise that 5nonobscene adolescent sex5 could not besinled out for special treatment that the court found R $7%.#+ 5stri"inlyunderinclusive.5 0oreover, the assumption that the constitutionally permissible

reulation of pornoraphy could not be more extensive with respect to the distribution

of material depictin children may also have led the court to conclude that anarrowin construction of R $7% #+ was unavailable

not have serious literary, artistic, political, or scientific value.5 6d. at &#% . -. $&. )ver the past decade we have adhered to the uidelines expressed in 0iller @ 7 which











narrowin construction of R $7%.#+ was unavailable.

'he Court of AppealsJ assumption was not unreasonable in liht of our decisions. 'hiscase, however, constitutes our first examination of a statute directed at and limited todepictions of sexual activity involvin children. !e believe our in8uiry should beinwith the 8uestion of whether a -tate has somewhat more freedom in proscribinwor"s which portray sexual acts or lewd exhibitions of enitalia by children.

A

In Cha"lins%y v. )e* 7am"shire# %#+ . -. +7; 2#?&$4, the Court laid the foundationfor the excision of obscenity from the realm of constitutionally protected expression

5'here are certain well1defined and narrowly limited classes of speech, theprevention and punishment of which have never been thouht to raise anyConstitutional problem. 'hese include the lewd and obscene. . . . It has beenwell observed that such utterances are no essential part of any exposition of ideas, and are of such sliht social value as a step to truth that any benefitthat may be derived from them is clearly outweihed by the social interest inorder and morality.5 6d. at %#+ . -. +9#1+9$ 2footnotes omitted4.

Embracin this judment, the Court s8uarely held in /oth v. 0nited States# %+& . -.&97 2#?+94, that 5obscenity is not within the area of constitutionally protected speechor press.5 6d. at %+& . -. &;+. 'he Court reconied that 5rejection of obscenity as

utterly without redeemin social importance5 was implicit in the history of the :irst Amendment the oriinal -tates provided for the prosecution of libel, blasphemy, andprofanity, and the 5universal judment that obscenity should be restrained @isreflected in the international areement of over +( nations, in the obscenity laws of allof the &; states, and in the $( obscenity laws enacted by Conress from #;&$ to#?+7.5 6d. at %+& . -. &;&1&;+ 2footnotes omitted4.

/oth was followed by #+ years durin which this Court struled with 5the intractableobscenity problem.5 6nterstate Circuit# 6nc. v. -allas# %?( . -. 797, %?( . -. 9(&2#?7;4 2opinion of >arlan, *.4. See# e.g.# /edru" v. )e* or%# %;7 . -. 979 2#?794.<espite considerable vacillation over the proper definition of obscenity, a majority of the 0embers of the Court remained firm in the position that 5the -tates have aleitimate interest in prohibitin dissemination or exhibition of obscene material whenthe mode of dissemination carries with it a sinificant daner of offendin the

sensibilities of unwillin recipients or of exposure to juveniles.5 Miller v. California#su"ra# at &#% . -. ##? 2 omitted4L Stanley v. ,eorgia# %?& . -. ++9, %?& . -. +792#?7?4L ,ins+erg v. )e* or%# %?( . -. 7$?, %?( . -. 7%917&% 2#?7;4L 6nterstateCircuit# 6nc. v. -allas# su"ra# at %?( . -. 7?(L /edru" v. )e* or%# su"ra# at %;7 .-. 97?L :aco+ellis v. Ohio# %9; . -. #;&, %9; . -. #?+ 2#?7&4.

'hrouhout this period, we reconied 5the inherent daners of underta"in toreulate any form of expression.5 Miller v. California# su"ra# at &#% . -. $%.Conse8uently, our difficulty was not only to assure that statutes desined to reulateobscene materials sufficiently defined what was prohibited, but also to devisesubstantive limits on what fell within the permissible scope of reulation. In Miller v.California# su"ra# a majority of the Court areed that a 5state offense must also belimited to wor"s which, ta"en as a whole, appeal to the prurient interest in sex, whichportray sexual conduct in a patently offensive way, and which, ta"en as a whole, do

the past decade, we have adhered to the uidelines expressed in 0iller, @ 7 whichsubse8uently has been followed in the reulatory schemes of most -tates. @ 9

B

'he Miller standard, li"e its predecessors, was an accommodation between the-tateJs interests in protectin the 5sensibilities of unwillin recipients5 from exposureto pornoraphic material and the daners of censorship inherent in unabashedlycontent1based laws. 3i"e obscenity statutes, laws directed at the dissemination of child pornoraphy run the ris" of suppressin protected expression by allowin the

hand of the censor to become unduly heavy. :or the followin reasons, however, weare persuaded that the -tates are entitled to reater leeway in the reulation of pornoraphic depictions of children.

5irst. It is evident beyond the need for elaboration that a -tateJs interest in5safeuardin the physical and psycholoical wellbein of a minor5 is 5compellin.5,lo+e )e*s"a"er Co. v. Su"erior Court# &+9 . -. +?7, &+9 . -. 7(9 2#?;$4. 5Ademocratic society rests, for i ts continuance, upon the healthy, well1rounded rowth of youn people into full maturity as citiens.5 &rince v. Massachusetts# %$# . -. #+;,%$# . -. #7; 2#?&&4. Accordinly, we have sustained leislation aimed at protectinthe physical and emotional wellbein of youth even when the laws have operated inthe sensitive area of constitutionally protected rihts. In &rince v. Massachusetts#su"ra# the Court held that a statute prohibitin use of a child to distribute literature onthe street was valid notwithstandin the statuteJs effect on a :irst Amendment activity.

In ,ins+erg v. )e* or%# su"ra# we sustained a New Por" law protectin children f romexposure to nonobscene literature. 0ost recently, we held that the /overnmentJsinterest in the 5wellbein of its youth5 justified special treatment of indecentbroadcastin received by adults as well as children. 5CC v. &acifica 5oundation# &%;. -. 9$7 2#?9;4.

'he prevention of sexual exploitation and abuse of children constitutes a overnmentobjective of surpassin importance. 'he leislative findins accompanyin passae of the New Por" laws reflect this concern

5@'here has been a proliferation of exploitation of children as subjects insexual performances. 'he care of children is a sacred trust and should notbe abused by those who see" to profit throuh a commercial networ" basedupon the exploitation of children. 'he public policy of the state demands theprotection of children from exploitation throuh sexual performances.5 #?99N.P.3aws, ch. ?#(, R #. @ ;

!e shall not second1uess this leislative judment. =espondent has not intimatedthat we do so. -uffice it to say that virtually all of the -tates and the nited -tateshave passed leislation proscribin the production of or otherwise combatin 5childpornoraphy.5 'he leislative judment, as well as the judment found in the relevantliterature, is that the use of children as subjects of pornoraphic materials is harmfulto the physioloical, emotional, and mental health of the child. @ ? 'hat judment, wethin", easily passes muster under the :irst Amendment.

Second. 'he distribution of photoraphs and films depictin sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways.:irst, the materials produced are a permanent record of the childrenJs participation

and the harm to the child is exacerbated by their circulation. @ #( -econd, thedistribution networ" for child pornoraphy must be closed if the production of material

exhibitin their enitals would often constitute an important and necessary part of aliterary performance or scientific or educational wor". As a state jude in this case






































































distribution networ" for child pornoraphy must be closed if the production of materialwhich re8uires the sexual exploitation of children is to be effectively controlled.Indeed, there is no serious contention that the leislature was unjustified in believinthat it is difficult, if not impossible, to halt the exploitation of children by pursuin onlythose who produce the photoraphs and movies. !hile the production of pornoraphic materials is a low profile, clandestine industry, the need to mar"et theresultin products re8uires a visible apparatus of distribution. 'he most expeditious, if not the only practical, method of law enforcement may be to dry up the mar"et for thismaterial by imposin severe criminal penalties on persons sellin, advertisin, or otherwise promotin the product. 'hirty1five -tates and Conress have concludedthat restraints on the distribution of pornoraphic materials are re8uired in order toeffectively combat the problem, and there is a body of literature and testimony tosupport these leislative conclusions. @ ## Cf. 0nited States v. -ar+y# %#$ . -. #((2#?&#4 2upholdin federal restrictions on sale of oods manufactured in violation of :air 3abor -tandards Act4.

=espondent does not contend that the -tate is unjustified in pursuin those whodistribute child pornoraphy. =ather, he arues that it is enouh for the -tate toprohibit the distribution of materials that are leally obscene under the Miller test.!hile some -tates may find that this approach properly accommodates its interests, itdoes not follow that the :irst Amendment prohibits a -tate from oin further. 'heMiller standard, li"e all eneral definitions of what may be banned as obscene, doesnot reflect the -tateJs particular and more compellin interest in prosecutin those

who promote the sexual exploitation of children. 'hus, the 8uestion under the Miller test of whether a wor", ta"en as a whole, appeals to the prurient interest of theaverae person bears no connection to the issue of whether a child has beenphysically or psycholoically harmed in the production of the wor". -imilarly, asexually explicit depiction need not be 5patently offensive5 in order to have re8uiredthe sexual exploitation of a child for its production. In addition, a wor" which, ta"en onthe whole, contains serious literary, artistic, political, or scientific value maynevertheless embody the hardest core of child pornoraphy. 5It is irrelevant to thechild @who has been abused whether or not the material . . . has a literary, artistic,political or social value.5 0emorandum of Assemblyman 3asher in -upport of R$7%.#+. !e therefore cannot conclude that the Miller standard is a satisfactorysolution to the child pornoraphy problem. @ #$

3hird. 'he advertisin and sellin of child pornoraphy provide an economic motive

for, and are thus an interal part of, the production of such materials, an activity illealthrouhout the Nation. @ #% 5It rarely has been suested that the constitutionalfreedom for speech and press extends its immunity to speech or writin used as aninteral part of conduct in violation of a valid criminal statute.5 ,i+oney v. Em"ireStorage N 6ce Co.# %%7 . -. &?(, %%7 . -. &?; 2#?&?4. @ #& !e note that, were thestatutes outlawin the employment of children in these films and photoraphs fullyeffective, and the constitutionality of these laws has not been 8uestioned, the :irst Amendment implications would be no reater than that presented by laws aainstdistribution enforceable production laws would leave no child pornoraphy to bemar"eted. @ #+

5ourth. 'he value of permittin live performances and photoraphic reproductions of children enaed in lewd sexual conduct is exceedinly modest, if not de minimis. !econsider it unli"ely that visual depictions of children performin sexual acts or lewdly

literary performance or scientific or educational wor". As a state jude in this caseobserved, if it were necessary for literary or artistic value, a person over the statutoryae who perhaps loo"ed youner could be utilied. @ #7 -imulation outside of theprohibition of the statute could provide another alternative. Nor is there any 8uestionhere of censorin a particular literary theme or portrayal of sexual activity. 'he :irst Amendment interest is limited to that of renderin the portrayal somewhat more5realistic5 by utiliin or photoraphin children.

5ifth. =econiin and classifyin child pornoraphy as a cateory of material outsidethe protection of the :irst Amendment is not incompatible with our earlier decisions.

5'he 8uestion whether speech is, or is not, protected by the :irst Amendment oftendepends on the content of the speech.5 oung v. American Mini 3heatres# 6nc.# &$9 .-. +(, &$9 . -. 77 2#?974 2opinion of -'EEN-, *., joined by B=/E=, C.*., and!>I'E and =E>NOI-' **.4. See also 5CC v. &acifica 5oundation# &%; . -. 9$7,&%; . -. 9&$19&; 2#?9;4 2opinion of -'EEN-, *., joined by B=/E=, C.*., and=E>NOI-', *.4. 5@It is the content of @an utterance that determines whether it is aprotected epithet or an unprotected fighting comment.>! oung v. American Mini 3heatres# 6nc.# su"ra# at FG= 0. S. JJ . See Cha"lins%y v. )e* 7am"shire# H?I 0. S.IJK '?DFG(. Leaving aside the s"ecial considerations *hen "u+lic officials are thetarget# )e* or% 3imes Co. v. Sullivan# H=J 0. S. GIF '?DJF(# a li+elous "u+lication isnot "rotected +y the Constitution. Beauharnais v. 6llinois# HFH 0. S. GI '?DIG(. 3hus#it is not rare that a content4+ased classification of s"eech has +een acce"ted +ecause it may +e a""ro"riately generalied that *ithin the confines of the given

classification# the evil to +e restricted so over*helmingly out*eighs the ex"ressiveinterests# if any# at sta%e# that no "rocess of case4+y4case adudication is re;uired.When a defina+le class of material# such as that covered +y GJH.?I# +ears soheavily and "ervasively on the *elfare of children engaged in its "roduction# *e thin% the +alance of com"eting interests is clearly struc%# and that it is "ermissi+le toconsider these materials as *ithout the "rotection of the 5irst Amendment.

C

'here are, of course, limits on the cateory of child pornoraphy which, li"e obscenity,is unprotected by the :irst Amendment. As with all leislation in this sensitive area,the conduct to be prohibited must be ade8uately defined by the applicable state law,as written or authoritatively construed. >ere the nature of the harm to be combatedre8uires that the state offense be limited to wor"s that visually depict sexual conduct

by children below a specified ae. @ #9 'he cateory of 5sexual conduct5 proscribedmust also be suitably limited and described.

'he test for child pornoraphy is separate from the obscenity standard enunciated inMiller# but may be compared to it for the purpose of clarity. 'he Miller formulation isadjusted in the followin respects a trier of fact need not find that the materialappeals to the prurient interest of the averae personL it is not re8uired that sexualconduct portrayed be done so in a patently offensive mannerL and the material atissue need not be considered as a whole. !e note that the distribution of descriptionsor other depictions of sexual conduct, not otherwise obscene, which do not involvelive performance or photoraphic or other visual reproduction of live performances,retains :irst Amendment protection. As with obscenity laws, criminal responsibilitymay not be imposed without some element of scienter on the part of the defendant.Smith v. California# %7# . -. #&9 2#?+?4L 7amling v. 0nited States# &#; . -. ;9

2#?9&4.

- 'he traditional rule is that a person to whom a statute may constitutionally be appliedmay not challene that statute on the round that it may conceivably be applied














































-ection $7%.#+Js prohibition incorporates a definition of sexual conduct that comportswith the above1stated principles. 'he forbidden acts to be depicted are listed withsufficient precision and represent the "ind of conduct that, if it were the theme of awor", could render it leally obscene 5actual or simulated sexual intercourse, deviatesexual intercourse, sexual bestiality, masturbation, sado1masochistic abuse, or lewdexhibition of the enitals.5 R $7%.((2%4. 'he term 5lewd exhibition of the enitals5 is notun"nown in this area and, indeed, was iven in Miller as an example of a permissiblereulation. &#% .-. at &#% . -. $+. A performance is defined only to include live or visual depictions 5any play, motion picture, photoraph or dance . . . @or other visual

representation exhibited before an audience.5 R $7%.((2&4. -ection $7%.#+ expresslyincludes a scienter re8uirement.

!e hold that R $7%.#+ sufficiently describes a cateory of material the production anddistribution of which is not entitled to :irst Amendment protection. It is therefore clear that there is nothin unconstitutionally 5underinclusive5 about a statute that sinles outthis cateory of material for proscription. @ #; It also follows that the -tate is notbarred by the :irst Amendment from prohibitin the distribution of unprotectedmaterials produced outside the -tate. @ #?

III

It remains to address the claim that the New Por" statute is unconstitutionallyoverbroad because it would forbid the distribution of material with serious literary,

scientific, or educational value or material which does not threaten the harms souhtto be combated by the -tate. =espondent prevailed on that round below, and it is tothat issue that we now turn.

'he New Por" Court of Appeals reconied that overbreadth scrutiny has been l imitedwith respect to conduct1related reulation, Broadric% v. O%lahoma# &#% . -. 7(#2#?9%4, but it did not apply the test enunciated in Broadric% because the challenedstatute, in its view, was directed at 5pure speech.5 'he court went on to find that R$7%.#+ was fatally overbroad 5@'he statute would prohibit the showin of any play or movie in which a child portrays a defined sexual act, real or simulated, in anonobscene manner. It would also prohibit the sale, showin, or distributin of medical or educational materials containin photoraphs of such acts. Indeed, by itsterms, the statute would prohibit those who oppose such portrayals from providinillustrations of what they oppose.5 +$ N.P.$d at 79;, &$$ N.E.$d at +$+.

!hile the construction that a state court ives a state statute is not a matter subject toour review, Wain*right v. Stone# &#& . -. $#, &#& . -. $$1$% 2#?9%4L ,ooding v.Wilson# &(+ . -. +#;, &(+ . -. +$( 2#?9$4, this Court is the final arbiter of whether the :ederal Constitution necessitated the invalidation of a state law. It is only throuhthis process of review that we may correct erroneous applications of the Constitutionthat err on the side of an overly broad readin of our doctrines and precedents, aswell as state court decisions ivin the Constitution too little shrift. A state court is notfree to avoid a proper facial attac" on federal constitutional rounds. Bigelo* v.9irginia# &$# . -. ;(?, &$# . -. ;#9 2#?9+4. By the same to"en, it should not becompelled to entertain an overbreadth attac" when not re8uired to do so by theConstitution.

A

y y y ppunconstitutionally to others in situations not before the Court. Broadric% v. O%lahoma#su"ra# at &#% . -. 7#(L 0nited States v. /aines# %7$ . -. #9, %7$ . -. $# 2#?7(4LCarmichael v. Southern Coal N Co%e Co.# %(# . -. &?+, %(# . -. +#% 2#?%94Laoo N M. 9. /. Co. v. :ac%son 9inegar Co.# $$7 . -. $#9, $$7 . -. $#?1$$(2#?#$4. In Broadric%# we reconied that this rule reflects two cardinal principles of our constitutional order the personal nature of constitutional rihts, Mc,o*an v.Maryland# %77 . -. &$(, %77 . -. &$? 2#?7#4, and prudential limitations onconstitutional adjudication. @ $( In 0nited States v. /aines# su"ra# at %7$ . -. $#, wenoted the 5incontrovertible proposition5 that it Jwould indeed be undesirable for thisCourt to consider every conceivable situation which miht possibly arise in theapplication of complex and comprehensive leislation,J5 28uotin Barro*s v. :ac%son#%&7 . -. $&?, %&7 . -. $+7 2#?+%44. By focusin on the factual situation before us,and similar cases necessary for development of a constitutional rule, @ $# we face5flesh1and1blood5 @ $$ leal problems with data 5relevant and ade8uate to aninformed judment.5 @ $% 'his practice also fulfills a valuable institutional purpose itallows state courts the opportunity to construe a law to avoid constitutional infirmities.

!hat has come to be "nown as the :irst Amendment overbreadth doctrine is one of the few exceptions to this principle, and must be justified by 5weihty countervailinpolicies.5 0nited States v. /aines# su"ra# at %7$ . -. $$%. 'he doctrine is predicatedon the sensitive nature of protected expression 5persons whose expression isconstitutionally protected may well refrain from exercisin their rihts for fear of

criminal sanctions by a statute susceptible of application to protected expression.59illage of Schaum+urg v. Citiens for a Better Environment# &&& . -. 7$(, &&& . -.7%& 2#?;(4L ,ooding v. Wilson# su"ra# at &(+ . -. +$#. It is for this reason that wehave allowed persons to attac" overly broad statutes even thouh the conduct of theperson ma"in the attac" is clearly unprotected, and could be proscribed by a lawdrawn with the re8uisite specificity. -om+ro*s%i v. &fister# %;( . -. &9?, %;( . -.&;7 2#?7+4L 3hornhill v. Ala+ama# %#( . -. ;;, %#( . -. ?91?; 2#?&(4L 0nited Statesv. /aines# su"ra# at %7$ . -. $#1$$L ,ooding v. Wilson# su"ra# at &(+ . -. +$#.

'he scope of the :irst Amendment overbreadth doctrine, li"e most exceptions toestablished principles, must be carefully tied to the circumstances in which facialinvalidation of a statute is truly warranted. Because of the wide1reachin effects of stri"in down a statute on its face at the re8uest of one whose own conduct may bepunished despite the :irst Amendment, we have reconied that the overbreadth

doctrine is 5stron medicine,5 and have employed it with hesitation, and then 5only asa last resort.5 Broadric%# &#% .-. at &#% . -. 7#%. !e have, in conse8uence,insisted that the overbreadth involved be 5substantial5 before the statute involved willbe invalidated on its face. @ $&

In Broadric%# we explained the basis for this re8uirement

5@'he plain import of our cases is, at the very least, that facial overbreadthadjudication is an exception to our traditional rules of practice, and that itsfunction, a limited one at the outset, attenuates as the otherwise unprotectedbehavior that it forbids the -tate to sanction moves from Jpure speechJtoward conduct, and that conduct 11 even if expressive 11 falls within thescope of otherwise valid criminal laws that reflect leitimate state interests inmaintainin comprehensive controls over harmful, constitutionally

unprotected conduct. Althouh such laws, if too broadly worded, may deter

protected speech to some un"nown extent, there comes a point where thateffect 11 at best a prediction 11 cannot, with confidence, justify invalidatin a

'his re8uirement of substantial overbreadth may justifiably be applied to statutorychallenes which arise in defense of a criminal prosecution as well as civil




























































































p , , j y statute on its face, and so prohibitin a -tate from enforcin the statuteaainst conduct that is admittedly within its power to proscribe. Cf. Aldelmanv. 0nited States# %?& . -. #7+, %?& . -. #9&1#9+ 2#?7?4.5 6d. at &#% . -.7#+. !e accordinly held that, 5particularly where conduct, and not merelyspeech, is involved, we believe that the overbreadth of a statute must notonly be real, but substantial as well, juded in relation to the statuteJs plainlyleitimate sweep.5 6+id. @ $+

Broadric% examined a reulation involvin restrictions on political campain activity,

an area not considered 5pure speech,5 and thus it was unnecessary to consider theproper overbreadth test when a law aruably reaches traditional forms of expressionsuch as boo"s and films. As we intimated in Broadric%# the re8uirement of substantialoverbreadth extended 5at the very least5 to cases involvin conduct plus speech. 'hiscase, which poses the 8uestion s8uarely, convinces us that the rationale of Broadric% is sound, and should be applied in the present context involvin the harmfulemployment of children to ma"e sexually explicit materials for distribution.

'he premise that a law should not be invalidated for overbreadth unless it reaches asubstantial number of impermissible applications is hardly novel. )n most occasionsinvolvin facial invalidation, the Court has stressed the embracin sweep of thestatute over protected expression. @ $7 Indeed, *-'ICE B=ENNAN observed in hisdissentin opinion in Broadric%8

5!e have never held that a statute should be held invalid on its face merelybecause it is possible to conceive of a sinle impermissible application, andin that sense, a re8uirement of substantial overbreadth is already implicit inthe doctrine.5 6d. at &#% . -. 7%(.

'he re8uirement of substantial overbreadth is directly derived from the purpose andnature of the doctrine. !hile a sweepin statute, or one incapable of limitation, hasthe potential to repeatedly chill the exercise of expressive activity by many individuals,the extent of deterrence of protected speech can be expected to decrease with thedeclinin reach of the reulation. @ $9 'his observation appears e8ually applicable tothe publication of boo"s and films as it is to activities, such as pic"etin or participation in election campains, which have previously been cateoried asinvolvin conduct plus speech. !e see no appreciable difference between the

position of a publisher or boo"seller in doubt as to the reach of New Por"Js childpornoraphy law and the situation faced by the )"lahoma state employees withrespect to that -tateJs restriction on partisan political activity. Indeed, it couldreasonably be arued that the boo"seller, with an economic incentive to sell materialsthat may fall within the statuteJs scope, may be less li"ely to be deterred than theemployee who wishes to enae in political campain activity. Cf. Bates v. State Bar of Ariona# &%% . -. %+(, &%% . -. %;(1%;# 2#?994 2overbreadth analysisinapplicable to commercial speech4.

penforcement or actions see"in a declaratory judment. Cf. &ar%er v. Levy# &#9 . -.9%%, &#9 . -. 97( 2#?9&4. Indeed, the CourtJs practice when confronted with ordinarycriminal laws that are souht to be applied aainst protected conduct is not toinvalidate the law in toto# but rather to reverse the particular conviction. Cant*ell v.Connecticut# %#( . -. $?7 2#?&(4L Ed*ards v. South Carolina# %9$ . -. $$? 2#?9%4.!e reconie, however, that the penalty to be imposed is relevant in determininwhether demonstrable overbreadth is substantial. !e simply hold that the fact that acriminal prohibition is involved does not obviate the need for the in8uiry or a "riori warrant a findin of substantial overbreadth.

B

Applyin these principles, we hold that R $7%.#+ is not substantially overbroad. !econsider this the paradimatic case of a state statute whose leitimate reach dwarfsits aruably impermissible applications. New Por", as we have held, mayconstitutionally prohibit dissemination of material specified in R $7%.#+. !hile thereach of the statute is directed at the hard core of child pornoraphy, the Court of Appeals was understandably concerned that some protected expression, raninfrom medical textboo"s to pictorials in the National /eoraphic would fall prey to thestatute. >ow often, if ever, it may be necessary to employ children to enae inconduct clearly within the reach of R $7%.#+ in order to produce educational, medical,or artistic wor"s cannot be "nown with certainty. Pet we seriously doubt, and it has notbeen suested, that these aruably impermissible applications of the statute amountto more than a tiny fraction of the materials within the statuteJs reach. Nor will weassume that the New Por" courts will widen the possibly invalid reach of the statute byivin an expansive construction to the proscription on 5lewd exhibition@s of theenitals.5 nder these circumstances, R $7%.#+ is 5not substantially overbroad, and . .. whatever overbreadth may exist should be cured throuh case1by1case analysis of the fact situations to which its sanctions, assertedly, may not be applied.5 Broadric% v.O%lahoma# &#% .-. at &#% . -. 7#+17#7.

IV

Because R $7%.#+ is not substantially overbroad, it is unnecessary to consider itsapplication to material that does not depict sexual conduct of a type that New Por"may restrict consistent with the :irst Amendment. As applied to aul :erber and to

others who distribute similar material, the statute does not violate the :irst Amendment as applied to the -tates throuh the :ourteenth. @ $; 'he judment of the New Por" Court of Appeals is reversed, and the case is remanded to that court for further proceedins not inconsistent with this opinion.

So ordered.

*-'ICE B3ACF0N concurs in the result.

RENO V. A!ERICAN CIVIL LIER/IES NION

.-. -upreme Court

521 .S. 8 *e&"e u#e 26, 1

RENO, A//ORNE GENERAL OF /HE NI/E* S/A/ES, E/ AL.v.A!ERICAN CIVIL LIER/IES NION E/ AL.

A&&EAL 5/OM 37E 0)63E- S3A3ES -6S3/6C3 CO0/3 5O/ 37E EAS3E/)

-6S3/6C3 O5 &E))SL9A)6A

Sylla+us

' i i f th C i ti < A t f #??7 2C<A A t4 " t

broadcastin, see, e. g.# /ed Lion Broadcasting Co. v. 5CC# %?+ . -. %79, %??1&((Lthe scarcity of available fre8uencies at its inception, see, e. g.# 3urner Broadcasting











































'wo provisions of the Communications <ecency Act of #??7 2C<A or Act4 see" toprotect minors from harmful material on the Internet, an international networ" of interconnected computers that enables millions of people to communicate with oneanother in 5cyberspace5 and to access vast amounts of information from around theworld. 'itle &9 . -. C. R $$%2a42I42B42ii4 2#??& ed., -upp. II4 criminalies the 5"nowin5transmission of 5obscene or indecent5 messaes to any recipient under #; years of ae. -ection $$%2d4 prohibits the 5"nowin@5 sendin or displayin to a person under #; of any messae 5that, in context, depicts or describes, in terms patently offensiveas measured by contemporary community standards, sexual or excretory activities or

orans.5 Affirmative defenses are provided for those who ta"e 5ood faith, ...effective ... actions5 to restrict access by minors to the prohibited communications, R$$%2e42+42A4, and those who restrict such access by re8uirin certain desinatedforms of ae proof, such as a verified credit card or an adult identification number,R$$%2e42+42B4. A number of plaintiffs filed suit challenin the constitutionality of RR$$%2a42I4 and $$%2d4. 0ter ma"in extensive findins of fact, a three1jude <istrictCourt convened pursuant to the Act entered a preliminary injunction aainstenforcement of both challened provisions. 'he courtJs judment enjoins the/overnment from enforcin R $$%2a42I42B4Js prohibitions insofar as they relate to5indecent5 communications, but expressly preserves the /overnmentJs riht toinvestiate and prosecute the obscenity or child pornoraphy activities prohibitedtherein. 'he injunction aainst enforcement of R $$%2d4 is un8ualified because thatsection contains no separate reference to obscenity or child pornoraphy. 'he

/overnment appealed to this Court under the ActJs special review provisions, aruinthat the <istrict Court erred in holdin that the C<A violated both the :irst Amendmentbecause it is overbroad and the :ifth Amendment because it is vaue.

7eld8 'he C<AJs 5indecent transmission5 and 5patently offensive display5 provisionsabride 5the freedom of speech5 protected by the :irst Amendment. p. ;7&1;;+.

2a4 Althouh the C<AJs vaueness is relevant to the :irst Amendment overbreadthin8uiry, the judment should be affirmed without reachin the :if th Amendment issue.. ;7&.

2b4 A close loo" at the precedents relied on by the /overnment ,ins+erg v. )e* or%#%?( . -. 7$?L 5CC v. &acifica 5oundation# FHK . -. 9$7L and /enton v. &laytime3heatres# 6nc.# &9+ . -. &#1raises, rather than relieves, doubts about the C<AJs

constitutionality. 'he C<A differs from the various laws and orders upheld in thosecases in many ways, includin that it does not allow parents to consent to their childrenJs use of restricted materialsL is not limited to commercial transactionsL fails toprovide any definition of 5indecent5 and omits any re8uirement that 5patentlyoffensive5 material lac" socially redeemin valueL neither limits its broad cateoricalprohibitions to particular times nor bases them on an evaluation by an aency familiar with the mediumJs uni8ue characteristicsL is punitiveL applies to a medium that, unli"eradio, receives full :irst Amendment protectionL and cannot be properly analyed as aform of time, place, and manner reulation because it is a content1based blan"etrestriction on speech. 'hese precedents, then, do not re8uire the Court to uphold theC<A and are fully consistent with the application of the most strinent review of itsprovisions. p. ;7&1;7;.

2c4 'he special factors reconied in some of the CourtJs cases as justifyin

reulation of the broadcast media1the history of extensive /overnment reulation of

g gSystem# 6nc. v. 5CC# I?G . -. 7$$, 7%917%;L and its 5invasive5 nature, see Sa+leCommunications of Cal.# 6nc. v. 5CC# &?$ . -. ##+, #$;1are not present incyberspace. 'hus, these cases provide no basis for 8ualifyin the level of :irst Amendment scrutiny that should be applied to the Internet. p.;7;1;9(.

2d4 =eardless of whether the C<A is so vaue that it violates the :ifth Amendment,the many ambiuities concernin the scope of its coverae render it problematic for :irst Amendment purposes. :or instance, its use of the undefined terms 5indecent5and 5patently offensive5 will provo"e uncertainty amon spea"ers about how the two

standards relate to each other and just what they mean. 'he vaueness of such acontent1based reulation, see, e. g.# ,entile v. State Bar of )ev.# +(# . -. #(%(,coupled with its increased deterrent effect as a criminal statute, see, e. g.#-om+ro*s%i v. &fister# %;( . -. &9?, raise special :irst Amendment concernsbecause of its obvious chillin effect on free speech. Contrary to the /overnmentJsarument, the C<A is not saved from vaueness by the fact that its 5patentlyoffensive5 standard repeats the second part of the three1pron obscenity test set forthin Miller v. California# &#% . -. #+,$&. 'he second Miller pron reduces the inherentvaueness of its own 5patently offensive5 term by re8uirin that the proscribedmaterial be 5specifically defined by the applicable state law.5 In addition, the Miller definition applies only to 5sexual conduct,5 whereas the C<A prohibition extends alsoto 5excretory activities5 and 5orans5 of both a sexual and excretory nature. Each of Miller>s other two prons also critically limits the uncertain sweep of the obscenity

definition. *ust because a definition includin three limitations is not vaue, it does notfollow that one of those limitations, standin alone, is not vaue. 'he C<AJsvaueness undermines the li"elihood that it has been carefully tailored to theconressional oal of protectin minors from potentially harmful materials. p.;9(1;9&.

2e4 'he C<A lac"s the precision that the :irst Amendment re8uires when a statutereulates the content of speech. Althouh the /overnment has an interest inprotectin children from potentially harmful materials, see, e. g.# ,ins+erg# %?( . -.,at 7%?, the C<A pursues that interest by suppressin a lare amount of speech thatadults have a constitutional riht to send and receive, see, e. g.# Sa+le# &?$ . -., at#$7. Its breadth is wholly unprecedented. 'he C<AJs burden on adult speech isunacceptable if less restrictive alternatives would be at least as effective in achievinthe ActJs leitimate purposes. -ee, e. ., id., at #$7. 'he /overnment has not proved

otherwise. )n the other hand, the <istrict Court found that currently available user4+ased software suests that a reasonably effective method by which "arents canprevent their children from accessin material which the "arents believe isinappropriate will soon be widely available. 0oreover, the aruments in this Courtreferred to possible alternatives such as re8uirin that indecent material be 5taed5to facilitate parental control, ma"in exceptions for messaes with artistic or educational value, providin some tolerance for parental choice, and reulatin someportions of the Internet differently from others. articularly in the liht of the absenceof any detailed conressional findins, or even hearins addressin the C<AJs specialproblems, the Court is persuaded that the C<A is not narrowly tailored. p.;9&1;9?.

2f4 'he /overnmentJs three additional aruments for sustainin the C<AJs affirmativeprohibitions are rejected. :irst, the contention that the Act is constitutional because itleaves open ample 5alternative channels5 of communication is unpersuasive because

the C<A reulates speech on the basis of its content, so that a 5time, place, andmanner5 analysis is inapplicable. -ee, e. g.# Consolidated Edison Co. of ). P. v.

children from harmful materials, we aree with the three1jude <istrict Court that thestatute abrides 5the freedom of speech5 protected by the :irst Amendment.#





















&u+lic Servo CommJn of N. P., &&9 . -. +%(, +%7. -econd, the assertion that theC<AJs 5"nowlede5 and 5specific person5 re8uirements sinificantly restrict itspermissible application to communications to persons the sender "nows to be under #; is untenable, iven that most Internet forums are open to all comers and that eventhe stronest readin of the 5specific person5 re8uirement would confer broad powersof censorship, in the form of a 5hec"lerJs veto,5 upon any opponent of indecentspeech. :inally, there is no textual support for the submission that material havinscientific, educational, or other redeemin social value will necessarily fall outside theC<AJs prohibitions. p. ;9?1;;#.

24 'he R $$%2e42+4 defenses do not constitute the sort of 5narrow tailorin5 that wouldsave the C<A. 'he /overnmentJs arument that transmitters may ta"e protective5ood faith actio@n5 by 5tain5 their indecent communications in a way that wouldindicate their contents, thus permittin recipients to bloc" their reception withappropriate software, is illusory, iven the re8uirement that such action be 5effective5'he proposed screenin software does not currently exist, but, even if it did, therewould be no way of "nowin whether a potential recipient would actually bloc" theencoded material. 'he /overnment also failed to prove that R $$%2b42+4Js verificationdefense would sinificantly reduce the C<AJs heavy burden on adult speech. Althouh such verification is actually bein used by some commercial providers of sexually explicit material, the <istrict CourtJs findins indicate that it is noteconomically feasible for most noncommercial spea"ers. p.;;#1;;$.

2h4 'he /overnmentJs arument that this Court should preserve the C<AJsconstitutionality by honorin its severability clause, R 7(;, and by construinnonseverable terms narrowly, is acceptable in only one respect. Because obscenespeech may be banned totally, see Miller# F?H . -., at #;, and R $$%2a4Js restrictionof 5obscene5 material enjoys a textual manifestation separate from that for 5indecent5material, the Court can sever the term 5or indecent5 from the statute, leavin the restof R $$%2a4 standin. p. ;;$1;;+.

2i4 'he /overnmentJs arument that its 5sinificant5 interest in fosterin the InternetJsrowth provides an independent basis for upholdin the C<AJs constitutionality issinularly unpersuasive. 'he dramatic expansion of this new forum contradicts thefactual basis underlyin this contention that the unreulated availability of 5indecent5and 5patently offensive5 material is drivin people away from the Internet. . ;;+.

?$? :. -upp. ;$&, affirmed.

-'EEN-, *., delivered the opinion of the Court, in which -CA3IA, FENNE<P,-)'E=, '>)0A-, /IN-B=/, and B=EPE=, **., joined. )JC)NN)=, *., filed anopinion concurrin in the judment in part and dissentin in part, in which=E>NOI-', C. *., joined, "ost# p. ;;7.

S/ICE S/EVENS e";ere ($e o'"#"o# o) ($e Cour(.

At issue is the constitutionality of two statutory provisions enacted to protect minorsfrom 5indecent5 and 5patently offensive5 communications on the Internet.Notwithstandin the leitimacy and importance of the conressional oal of protectin

I

'he <istrict Court made extensive findins of fact, most of which were based on adetailed stipulation prepared by the parties. -ee ?$? :. -upp. ;$&, ;%(1;&? 2E< a.#??74.@$ 'he findins describe the character and the dimensions of the Internet, theavailability of sexually explicit material in that medium, and the problems confrontinae verification for recipients of Internet communications. Because those findinsprovide the underpinnins for the leal issues, we bein with a summary of the

undisputed facts.

3he 6nternet

'he Internet is an international networ" of interconnected computers. It is theoutrowth of what bean in #?7? as a military proram called 5A=ANE',5 @% whichwas desined to enable computers operated by the military, defense contractors, anduniversities conductin defense1related research to communicate with one another byredundant channels even if some portions of the networ" were damaed in a war.!hile the A=ANE' no loner exists, it provided an example for the development of anumber of civilian networ"s that, eventually lin"in with each other, now enable tensof millions of people to communicate with one another and to access vast amounts of information from around the world. 'he Internet is 5a uni8ue and wholly new mediumof worldwide human communication.5@&

'he Internet has experienced 5extraordinary rowth.5@+ 'he number of 5host5computersthose that store information and relay communicationsincreased fromabout %(( in #?;# to approximately ?,&((,((( by the time of the trial in #??7. =ouhly7(V of these hosts are located in the nited -tates. About &( million people used theInternet at the time of trial, a number that is expected to mushroom to $(( million by#???.

Individuals can obtain access to the Internet from many different sources, enerallyhosts themselves or entities with a host affiliation. 0ost collees and universitiesprovide access for their students and facultyL many corporations provide their employees with access throuh an office networ"L many communities and locallibraries provide free accessL and an increasin number of storefront 5computer coffeeshops5 provide access for a small hourly fee. -everal major national 5online services5

such as America )nline, Compu-erve, the 0icrosoft Networ", and rodiy offer access to their own extensive proprietary networ"s as well as a lin" to the much larer resources of the Internet. 'hese commercial online services had almost #$ millionindividual subscribers at the time of trial.

Anyone with access to the Internet may ta"e advantae of a wide variety of communication and information retrieval methods. 'hese methods are constantlyevolvin and difficult to cateorie precisely. But, as presently constituted, those mostrelevant to this case are electronic mail 2e1mail4, automatic mailin list services 25mailexploders,5 sometimes referred to as 5listservs54, 5newsroups,5 5chat rooms,5 and the5!orld !ide !eb.5 All of these methods can be used to transmit textL most cantransmit sound, pictures, and movin video imaes. 'a"en toether, these toolsconstitute a uni8ue medium"nown to its users as 5cyberspace5located in no

particular eoraphical location but available to anyone, anywhere in the world, withaccess to the Internet.

oraniation controls any membership in the !eb, nor is there any sinle centraliedpoint from which individual !eb sites or services can be bloc"ed from the !eb.5@#(







E1mail enables an individual to send an electronic messaeenerally a"in to a noteor letterto another individual or to a roup of addressees. 'he messae is enerallystored electronically, sometimes waitin for the recipient to chec" her 5mailbox5 andsometimes ma"in its receipt "nown throuh some type of prompt. A mail exploder isa sort of e1mail roup. -ubscribers can send messaes to a common e1mail address,which then forwards the messae to the roupJs other subscribers. Newsroups alsoserve roups of reular participants, but these postins may be read by others aswell. 'here are thousands of such roups, each servin to foster an exchane of

information or opinion on a particular topic runnin the amut from, say, the music of !aner to Bal"an politics to AI<- prevention to the Chicao Bulls. About #((,(((new messaes are posted every day. In most newsroups, postins are automaticallypured at reular intervals. In addition to postin a messae that can be read later,two or more individuals wishin to communicate more immediately can enter a chatroom to enae in real1time dialouein other words, by typin messaes to oneanother that appear almost immediately on the othersJ computer screens. 'he <istrictCourt found that at any iven time 5tens of thousands of users are enain inconversations on a hue rane of subjects.5@7 It is 5no exaeration to conclude thatthe content on the Internet is as diverse as human thouht.5 @9

'he best "nown cateory of communication over the Internet is the !orld !ide !eb,which allows users to search for and retrieve information stored in remote computers,as well as, in some cases, to communicate bac" to desinated sites. In concreteterms, the !eb consists of a vast number of documents stored in different computersall over the world. -ome of these documents are simply files containin information.>owever, more elaborate documents, commonly "nown as !eb 5paes,5 are alsoprevalent. Each has its own address5rather li"e a telephone number.5 @; !eb paesfre8uently contain information and sometimes allow the viewer to communicate withthe paeJs 2or 5siteJs54 author. 'hey enerally also contain 5lin"s5 to other documentscreated by that siteJs author or to other 2enerally4 related sites. 'ypically, the lin"s areeither blue or underlined textsometimes imaes.

Naviatin the !eb is relatively straihtforward. A user may either type the address of a "nown pae or enter one or more "eywords into a commercial 5search enine5 in aneffort to locate sites on a subject of interest. A particular !eb pae may contain theinformation souht by the 5surfer,5 or, throuh its lin"s, it may be an avenue to other

documents located anywhere on the Internet. sers enerally explore a iven !ebpae, or move to another, by clic"in a computer 5mouse5 on one of the paeJs iconsor lin"s. Access to most !eb paes is freely available, but some allow access only tothose who have purchased the riht from a commercial provider. 'he !eb is thuscomparable, from the readersJ viewpoint, to both a vast library includin millions of readily available and indexed publications and a sprawlin mall offerin oods andservices.

:rom the publishersJ point of view, it constitutes a vast platform from which to addressand hear from a worldwide audience of millions of readers, viewers, researchers, andbuyers. Any person or oraniation with a computer connected to the Internet can5publish5 information. ublishers include overnment aencies, educationalinstitutions, commercial entities, advocacy roups, and individuals. @? ublishers mayeither ma"e their material available to the entire pool of Internet users, or confine

access to a selected roup, such as those willin to pay for the privilee. 5No sinle

Sexually Ex"licit Material

-exually explicit material on the Internet includes text, pictures, and chat and5extends from the modestly titillatin to the hardest1core.5@## 'hese files are created,named, and posted in the same manner as material that is not sexually explicit, andmay be accessed either deliberately or unintentionally durin the course of animprecise search. 5)nce a provider posts its content on the Internet, it cannot preventthat content from enterin any community.5@#$ 'hus, for example,

5when the C=DCalifornia 0useum of hotoraphy posts to its !eb sitenudes by Edward !eston and =obert 0applethorpe to announce that itsnew exhibit will travel to Baltimore and New Por" City, those imaes areavailable not only in 3os Aneles, Baltimore, and New Por" City, but also inCincinnati, 0obile, or Beijinwherever Internet users live. -imilarly, thesafer sex instructions that Critical ath posts to its !eb site, written in streetlanuae so that the teenae receiver can understand them, are availablenot just in hiladelphia, but also in rovo and raue.5 @#%

-ome of the communications over the Internet that oriinate in forein countries arealso sexually explicit.@#&

'houh such material is widely available, users seldom encounter such content

accidentally. 5A documentJs title or a description of the document will usually appear before the document itself . . . and in many cases the user will receive detailedinformation about a siteJs content before he or she need ta"e the step to access thedocument. Almost all sexually explicit imaes are preceded by warnins as to thecontent.5 @#+ :or that reason, the 5odds are slim5 that a user would enter a sexuallyexplicit site by accident. @#7 nli"e communications received by radio or television, 5thereceipt of information on the Internet re8uires a series of affirmative steps moredeliberate and directed than merely turnin a dial. A child re8uires somesophistication and some ability to read to retrieve material and thereby to use theInternet unattended.5@#9

-ystems have been developed to help parents control the material that may beavailable on a home computer with Internet access. A system may either limit acomputerJs access to an approved list of sources that have been identified as

containin no adult material, it may bloc" desinated inappropriate sites, or it mayattempt to bloc" messaes containin identifiable objectionable features. 5Althouhparental control software currently can screen for certain suestive words or for "nown sexually explicit sites, it cannot now screen for sexually explicit imaes.5 @#;

Nevertheless, the evidence indicates that 5a reasonably effective method by whichparents can prevent their children from accessin sexually explicit and other materialwhich parents may believe is inappropriate for their children will soon be widelyavailable.5@#?

Age 9erification

'he problem of ae verification differs for different uses of the Internet. 'he <istrictCourt cateorically determined that there 5is no effective way to determine the identityor the ae of a user who is accessin material throuh e1mail, mail exploders,

newsroups or chat rooms.5 @$( 'he /overnment offered no evidence that there was areliable way to screen recipients and participants in such forums for ae. 0oreover,

if it t h l i ll f ibl t bl " i J t d

@$& 'hey are informally described as the 5indecent transmission5 provision and the5patently offensive display5 provision. @$+



even if it were technoloically feasible to bloc" minorsJ access to newsroups andchat rooms containin discussions of art, politics, or other subjects that potentiallyelicit 5indecent5 or 5patently offensive5 contributions, it would not be possible to bloc"their access to that material and 5still allow them access to the remainin content,even if the overwhelmin majority of that content was not indecent.5@$#

'echnoloy exists by which an operator of a !eb site may condition access on theverification of re8uested information such as a credit card number or an adultpassword. Credit card verification is only feasible, however, either in connection with a

commercial transaction in which the card is used, or by payment to a verificationaency. sin credit card possession as a surroate for proof of ae would imposecosts on noncommercial !eb sites that would re8uire many of them to shut down. :or that reason, at the time of the trial, credit card verification was 5effectively unavailableto a substantial number of Internet content providers.5 ?$? :. -upp., at ;&7 2findin#($4. 0oreover, the imposition of such a re8uirement 5would completely bar adultswho do not have a credit card and lac" the resources to obtain one from accessinany bloc"ed material.5@$$

Commercial pornoraphic sites that chare their users for access have assinedthem passwords as a method of ae verification. 'he record does not contain anyevidence concernin the reliability of these technoloies. Even if passwords areeffective for commercial purveyors of indecent material, the <istrict Court found thatan adult password re8uirement would impose sinificant burdens on noncommercialsites, both because they would discourae users from accessin their sites andbecause the cost of creatin and maintainin such screenin systems would be5beyond their reach.5@$%

In sum, the <istrict Court found

5Even if credit card verification or adult password verification wereimplemented, the /overnment presented no testimony as to how suchsystems could ensure that the user of the password or credit card is in factover #;. 'he burdens imposed by credit card verification and adult passwordverification systems ma"e them effectively unavailable to a substantialnumber of Internet content providers.5 6+id. 2findin #(94.

II

'he 'elecommunications Act of #??7, ub. 3. #(&1#(&, ##( -tat. +7, was anunusually important leislative enactment. As stated on the first of its #(% paes, itsprimary purpose was to reduce reulation and encourae 5the rapid deployment of new telecommunications technoloies.5 'he major components of the statute havenothin to do with the InternetL they were desined to promote competition in the localtelephone service mar"et, the multichannel video mar"et, and the mar"et for over1the1air broadcastin. 'he Act includes seven 'itles, six of which are the product of extensive committee hearins and the subject of discussion in =eports prepared byCommittees of the -enate and the >ouse of =epresentatives. By contrast, 'itle "nown as the 5Communications <ecency Act of #??75 2C<A4contains provisionsthat were either added in executive committee after the hearins were concluded or as amendments offered durin floor debate on the leislation. An amendment offered

in the -enate was the source of the two statutory provisions challened in this case.

'he first, &9 . -. C. R $$%2a4 2#??& ed., -upp. II4, prohibits the "nowin transmissionof obscene or indecent messaes to any recipient under #; years of ae. It providesin pertinent part

52a4 !hoever

52#4 in interstate or forein communications

. . . . .

52B4 by means of a telecommunications device "nowinly

52i4 ma"es, creates, or solicits, and

52ii4 initiates the transmission of, 5any comment, re8uest,suestion, proposal, imae, or other communication which isobscene or indecent, "nowin that the recipient of thecommunication is under #; years of ae, reardless of whether thema"er of such communication placed the call or initiated thecommunicationL

. . . . .

52$4 "nowinly permits any telecommunications facility under his control tobe used for any activity prohibited by pararaph 2#4 with the intent that it beused for such activity, 5shall be fined under 'itle #;, or imprisoned not morethan two years, or both.5

'he second provision, R $$%2d4, prohibits the "nowin sendin or displayin of patently offensive messaes in a manner that is available to a person under #; yearsof ae. It provides

52d4 !hoever

52#4 in interstate or forein communications "nowinly

52A4 uses an interactive computer service to send to a specificperson or persons under #; years of ae, or

52B4 uses any interactive computer service to display in a manner available to a person under #; years of ae, 5any comment,re8uest, suestion, proposal, imae, or other communication that,in context, depicts or describes, in terms patently offensive asmeasured by contemporary community standards, sexual or excretory activities or orans, reardless of whether the user of such service placed the call or initiated the communicationL or

52$4 "nowinly permits any telecommunications facility under such personJscontrol to be used for an activity prohibited by pararaph 2#4 with the intentthat it be used for such activity, 5shall be fined under 'itle #;, or imprisonednot more than two years, or both.5

'he breadth of these prohibitions is 8ualified by two affirmative defenses. -ee R$$%2e42+4.@$7 )ne covers those who ta"e 5ood faith, reasonable, effective, and

i t ti 5 t t i t b i t th hibit d i ti R

explained at lenth why he believed the C<A would abride sinificant protectedspeech, particularly by noncommercial spea"ers, while 5@perversely, commercial

h ld i l ti l ff t d 5 6d t ;9? > t d



appropriate actions5 to restrict access by minors to the prohibited communications. R$$%2e42+42A4. 'he other covers those who restrict access to covered material byre8uirin certain desinated forms of ae proof, such as a verified credit card or anadult identification number or code. R $$%2e42+42B4.

III

)n :ebruary ;, #??7, immediately after the resident sined the statute, $(plaintiffs@$9 filed suit aainst the Attorney /eneral of the nited -tates and the

<epartment of *ustice challenin the constitutionality of RR $$%2a42#4 and $$%2d4. Awee" later, based on his conclusion that the term 5indecent5 was too vaue to providethe basis for a criminal prosecution, <istrict *ude Buc"walter entered a temporaryrestrainin order aainst enforcement of R $$%2a42#42B42ii4 insofar as it applies toindecent communications. A second suit was then filed by $9 additional plaintiffs, @$;

the two cases were consolidated, and a three1jude <istrict Court was convenedpursuant to R +7# of the C<A. @$? After an evidentiary hearin, that court entered apreliminary injunction aainst enforcement of both of the challened provisions. Eachof the three judes wrote a separate opinion, but their judment was unanimous.

Chief *ude -loviter doubted the strenth of the /overnmentJs interest in reulatin5the vast rane of online material covered or potentially covered by the C<A,5 butac"nowleded that the interest was 5compellin5 with respect to some of that material.?$? :. -upp., at ;+%. -he concluded, nonetheless, that the statute 5sweeps more

broadly than necessary and thereby chills the expression of adults5 and that the terms5patently offensive5 and 5indecent5 were 5inherently vaue.5 6d.# at ;+&. -he alsodetermined that the affirmative defenses were not 5technoloically or economicallyfeasible for most providers,5 s"ecifically considering and reecting an argument that "roviders could avoid lia+ility +y !tagging! their material in a manner that *ould allo* "otential readers to screen out un*anted transmissions. 6d.# at ;+7. Chief *ude-loviter also rejected the /overnmentJs suestion that the scope of the statute couldbe narrowed by construin it to apply only to commercial pornoraphers. 6d.# at ;+&1;++.

*ude Buc"walter concluded that the word 5indecent5 in R $$%2a42#42B4 and the terms5patently offensive5 and 5in context5 in R $$%2d42#4 were so vaue that criminalenforcement of either section would violate the 5fundamental constitutional principle5of 5simple fairness,5 id.# at ;7#, and the specific protections of the :irst and :ifth Amendments, id.# at ;+;. >e found no statutory basis for the /overnmentJs arumentthat the challened provisions would be applied only to 5pornoraphic5 materials,notin that, unli"e obscenity, 5indecency has not been defined to exclude wor"s of serious literary, artistic, political or scientific value.5 6d.# at ;7%. 0oreover, the/overnmentJs claim that the wor" must be considered patently offensive 5in context5was itself vaue because the relevant context miht 5refer to, amon other thins, thenature of the communication as a whole, the time of day it was conveyed, the mediumused, the identity of the spea"er, or whether or not it is accompanied by appropriatewarnins.5 6d.# at ;7&. >e believed that the uni8ue nature of the Internet aravatedthe vaueness of the statute. 6d.# at ;7+, n. ?.

*ude <alellJs review of 5the special attributes of Internet communication5 disclosedby the evidence convinced him that the :irst Amendment denies Conress the power

to reulate the content of protected speech on the Internet. 6d.# at ;79. >is opinion

pornoraphers would remain relatively unaffected.5 6d.# at ;9?. >e construed our cases as re8uirin a 5medium1specific5 approach to the analysis of the reulation of mass communication, id.# at ;9%, and concluded that the Internetas 5the mostparticipatory form of mass speech yet developed,5 id.# at ;;%is entitled to 5thehihest protection from overnmental intrusion,5 i+id.@%(

'he judment of the <istrict Court enjoins the /overnment from enforcin theprohibitions in R $$%2a42#42B4 insofar as they relate to 5indecent5 communications, butexpressly preserves the /overnmentJs riht to investiate and prosecute the

obscenity or child pornoraphy activities prohibited therein. 'he injunction aainstenforcement of RR $$%2d42#4 and 2$4 is un8ualified because those provisions containno separate reference to obscenity or child pornoraphy.

'he /overnment appealed under the C<AJs special review provisions, R +7#, ##(-tat. #&$1#&%, and we noted probable jurisdiction, see +#? . -. #($+ 2#??74. In itsappeal, the /overnment arues that the <istrict Court erred in holdin that the C<Aviolated both the :irst Amendment because it is overbroad and the :ifth Amendmentbecause it is vaue. !hile we discuss the vaueness of the C<A because of itsrelevance to the :irst Amendment overbreadth in8uiry, we conclude that the judmentshould be affirmed without reachin the :ifth Amendment issue. !e bein our analysis by reviewin the principal authorities on which the /overnment relies. 'hen,after describin the overbreadth of the C<A, we consider the /overnmentJs specificcontentions, includin its submission that we save portions of the statute either byseverance or by fashionin judicial limitations on the scope of its coverae.

IV

In aruin for reversal, the /overnment contends that the C<A is plainly constitutionalunder three of our prior decisions 2#4 ,ins+erg v. )e* or%# %?( . -. 7$? 2#?7;4L 2$45CC v. &acifica 5oundation# &%; . -. 9$7 2#?9;4L and 2%4 /enton v. &laytime3heatres# 6nc.# &9+ . -. &# 2#?;74. A close loo" at these cases, however, raisesrather than relieves doubts concernin the constitutionality of the C<A.

In ,ins+erg# we upheld the constitutionality of a New Por" statute that prohibitedsellin to minors under #9 years of ae material that was considered obscene as tothem even if not obscene as to adults. !e rejected the defendantJs broad submissionthat 5the scope of the constitutional freedom of expression secured to a citien to read

or see material concerned with sex cannot be made to depend on whether the citienis an adult or a minor.5 %?( . -., at 7%7. In rejectin that contention, we relied notonly on the -tateJs independent interest in the well1bein of its youth, but also on our consistent reconition of the principle that 5the parentsJ claim to authority in their ownhousehold to direct the rearin of their children is basic in the structure of our society.5 @%#

In four important respects, the statute upheld in ,ins+erg was narrower than theC<A. :irst, we noted in ,ins+erg that 5the prohibition aainst sales to minors doesnot bar parents who so desire from purchasin the maaines for their children.5 6d.#at 7%?. nder the C<A, by contrast, neither the parentsJ consentnor even their participation in the communication would avoid the application of the statute. @%$

-econd, the New Por" statute applied only to commercial transactions, id.# at 7&9,

whereas the C<A contains no such limitation. 'hird, the New Por" statute cabined its

definition of material that is harmful to minors with the re8uirement that it be 5utterlywithout redeemin social importance for minors.5 6d.# at 7&7. 'he C<A fails to provide

s ith an definition of the term 5indecent5 as sed in R $$%2a42#4 and importantl

In /enton# we upheld a onin ordinance that "ept adult movie theaters out of residential neihborhoods. 'he ordinance was aimed, not at the content of the filmssho n in the theaters b t rather at the 5secondar effects5 s ch as crime and



us with any definition of the term 5indecent5 as used in R $$%2a42#4 and, importantly,omits any re8uirement that the 5patently offensive5 material covered by R $$%2d4 lac"serious literary, artistic, political, or scientific value. :ourth, the New Por" statutedefined a minor as a person under the ae of #9, whereas the C<A, in applyin to allthose under #; years, includes an additional year of those nearest majority.

In &acifica# we upheld a declaratory order of the :ederal CommunicationsCommission, holdin that the broadcast of a recordin of a #$1minute monoloueentitled 5:ilthy !ords5 that had previously been delivered to a live audience 5could

have been the subject of administrative sanctions.5 &%; . -., at 9%( 2internal8uotation mar"s omitted4. 'he Commission had found that the repetitive use of certainwords referrin to excretory or sexual activities or orans 5in an afternoon broadcastwhen children are in the audience was patently offensive5 and concluded that themonoloue was indecent 5as broadcast.5 6d.# at 9%+. 'he respondent did not 8uarrelwith the findin that the afternoon broadcast was patently offensive, but contendedthat it was not 5indecent5 within the meanin of the relevant statutes because itcontained no prurient appeal. After rejectin respondentJs statutory aruments, weconfronted its two constitutional aruments 2#4 that the CommissionJs construction of its authority to ban indecent speech was so broad that its order had to be set asideeven if the broadcast at issue was unprotectedL and 2$4 that since the recordin wasnot obscene, the :irst Amendment forbade any abridment of the riht to broadcast iton the radio.

In the portion of the lead opinion not joined by *ustices owell and Blac"mun, theplurality stated that the :irst Amendment does not prohibit all overnmental reulationthat depends on the content of speech. 6d.# at 9&$19&%. Accordinly, the availability of constitutional protection for a vular and offensive monoloue that was not obscenedepended on the context of the broadcast. 6d.# at 9&&19&;. =elyin on the premisethat 5of all forms of communication5 broadcastin had received the most limited :irst Amendment protection, id.# at 9&;19&?, the Court concluded that the ease with whichchildren may obtain access to broadcasts, 5coupled with the concerns reconied in,ins+erg# 5 justified special treatment of indecent broadcastin. 6d.# at 9&?19+(.

As with the New Por" statute at issue in ,ins+erg# there are sinificant differencesbetween the order upheld in &acifica and the C<A. :irst, the order in &acifica# issuedby an aency that had been reulatin radio stations for decades, tareted a specific

broadcast that represented a rather dramatic departure from traditional proramcontent in order to desinate whenrather than whetherit would be permissible toair such a proram in that particular medium. 'he C<AJs broad cateoricalprohibitions are not limited to particular times and are not dependent on anyevaluation by an aency familiar with the uni8ue characteristics of the Internet.-econd, unli"e the C<A, the CommissionJs declaratory order was not punitiveL weexpressly refused to decide whether the indecent broadcast 5would justify a criminalprosecution.5 &%; . -., at 9+(. :inally, the CommissionJs order applied to a mediumwhich as a matter of history had 5received the most limited :irst Amendmentprotection,5 id.# at 9&;, in lare part because warnins could not ade8uately protectthe listener from unexpected proram content. 'he Internet, however, has nocomparable history. 0oreover, the <istrict Court found that the ris" of encounterinindecent material by accident is remote because a series of affirmative steps isre8uired to access specific material.

shown in the theaters, but rather at the 5secondary effects5such as crime anddeterioratin property valuesthat these theaters fostered 5[It is th@e secondaryeffect which these onin ordinances attempt to avoid, not the dissemination of 5offensive5 speech.J 5 &9+ . -., at &? 28uotin oung v. American Mini 3heatres# 6nc.#&$9 . -. +(, 9#, n. %& 2#?9744. Accordin to the /overnment, the C<A isconstitutional because it constitutes a sort of 5cyberonin5 on the Internet. But theC<A applies broadly to the entire universe of cyberspace. And the purpose of theC<A is to protect children from the primary effects of 5indecent5 and 5patentlyoffensive5 speech, rather than any 5secondary5 effect of such speech. 'hus, the C<A

is a content1based blan"et restriction on speech, and, as such, cannot be 5properlyanalyed as a form of time, place, and manner reulation.5 &9+ . -., at &7. -ee alsoBoos v. Barry# &;+ . -. %#$, %$# 2#?;;4 25=eulations that focus on the direct impactof speech on its audience5 are not properly analyed under /enton 4L 5orsyth County v. )ationalist Movement# +(+ . -. #$%, #%& 2#??$4 253istenersJ reaction to speech isnot a content1neutral basis for reulation54.

'hese precedents, then, surely do not re8uire us to uphold the C<A and are fullyconsistent with the application of the most strinent review of its provisions.

V

In Southeastern &romotions# Ltd. v. Conrad# &$( . -. +&7, ++9 2#?9+4, we observedthat 5@each medium of expression. . . may present its own problems.5 'hus, some of

our cases have reconied special justifications for reulation of the broadcast mediathat are not applicable to other spea"ers, see /ed Lion Broadcasting Co. v. 5CC# %?+. -. %79 2#?7?4L 5CC v. &acifica 5oundation# &%; . -. 9$7 2#?9;4. In these cases,the Court relied on the history of extensive /overnment reulation of the broadcastmedium, see, e. g.# /ed Lion# %?+ . -., at %??1&((L the scarcity of availablefre8uencies at its inception, see, e. g.# 3urner Broadcasting System# 6nc. v. 5CC# +#$. -. 7$$, 7%917%; 2#??&4L and its 5invasive5 nature, see Sa+le Communications of Cal.# 6nc. v. 5CC# &?$ . -. ##+, #$; 2#?;?4.

'hose factors are not present in cyberspace. Neither before nor after the enactmentof the C<A have the vast democratic forums of the Internet been subject to the typeof overnment supervision and reulation that has attended the broadcast industry.@%%

0oreover, the Internet is not as 5invasive5 as radio or television. 'he <istrict Courtspecifically found that 5@communications over the Internet do not [invadeJ anindividualJs home or appear on oneJs computer screen unbidden. sers seldomencounter content [by accident.J 5 ?$? :. -upp., at ;&& 2findin ;;4. It also found that5@almost all sexually explicit imaes are preceded by warnins as to the content,5 andcited testimony that 5[odds are slimJ that a user would come across a sexually explicitsiht by accident.5 6+id.

!e distinuished &acifica in Sa+le# &?$ . -., at #$;, on just this basis. In Sa+le# acompany enaed in the business of offerin sexually oriented prerecorded telephonemessaes 2popularly "nown as 5dial1a1porn54 challened the constitutionality of anamendment to the Communications Act of #?%& that imposed a blan"et prohibition onindecent as well as obscene interstate commercial telephone messaes. !e held thatthe statute was constitutional insofar as it applied to obscene messaes but invalid asapplied to indecent messaes. In attemptin to justify the complete ban and

criminaliation of indecent commercial telephone messaes, the /overnment relied

on &acifica# aruin that the ban was necessary to prevent children from aininaccess to such messaes. !e areed that 5there is a compellin interest in protectinthe physical and psycholoical well bein of minors5 which extended to shieldin

2#?7+4. As a practical matter, this increased deterrent effect, coupled with the 5ris" of discriminatory enforcement5 of vaue reulations, poses reater :irst Amendmentconcerns than those implicated by the civil reulation reviewed in -enver Area Ed



the physical and psycholoical well1bein of minors which extended to shieldinthem from indecent messaes that are not obscene by adult standards, &?$ . -., at#$7, but distinuished our 5emphatically narrow holdin5 in &acifica because it did notinvolve a complete ban and because it involved a different medium of communication,id.# at #$9. !e explained that 5the dial1it medium re8uires the listener to ta"eaffirmative steps to receive the communication.5 6d.# at #$91#$;. 5lacin a telephonecall,5 we continued, 5is not the same as turnin on a radio and bein ta"en by surpriseby an indecent messae.5 6d.# at #$;.

:inally, unli"e the conditions that prevailed when Conress first authoried reulationof the broadcast spectrum, the Internet can hardly be considered a 5scarce5expressive commodity. It provides relatively unlimited, low1cost capacity for communication of all "inds. 'he /overnment estimates that 5@as many as &( millionpeople use the Internet today, and that fiure is expected to row to $(( million by#???.5@%& 'his dynamic, multifaceted cateory of communication includes not onlytraditional print and news services, but also audio, video, and still imaes, as well asinteractive, real1time dialoue. 'hrouh the use of chat rooms, any person with aphone line can become a town crier with a voice that resonates farther than it couldfrom any soapbox. 'hrouh the use of !eb paes, mail exploders, and newsroups,the same individual can become a pamphleteer. As the <istrict Court found, 5thecontent on the Internet is as diverse as human thouht.5 ?$? :. -upp., at ;&$ 2findin9&4. !e aree with its conclusion that our cases provide no basis for 8ualifyin the

level of :irst Amendment scrutiny that should be applied to this medium.VI

=eardless of whether the C<A is so vaue that it violates the :ifth Amendment, themany ambiuities concernin the scope of its coverae render it problematic for purposes of the :irst Amendment. :or instance, each of the two parts of the C<Auses a different linuistic form. 'he first uses the word 5indecent,5 &9 . -. C. R$$%2a4 2#??& ed., -upp. II4, while the second spea"s of material that 5in context,depicts or describes, in terms patently offensive as measured by contemporarycommunity standards, sexual or excretory activities or orans,5 R $$%2d4. /iven theabsence of a definition of either term,@%+ this difference in lanuae will provo"euncertainty amon spea"ers about how the two standards relate to each other @%7 and just what they mean.@%9 Could a spea"er confidently assume that a serious discussion

about birth control practices, homosexuality, the :irst Amendment issues raised bythe Appendix to our &acifica opinion, or the conse8uences of prison rape would notviolate the C<AS 'his uncertainty undermines the li"elihood that the C<A has beencarefully tailored to the conressional oal of protectin minors from potentiallyharmful materials.

'he vaueness of the C<A is a matter of special concern for two reasons. :irst, theC<A is a content1based reulation of speech. 'he vaueness of such a reulationraises special :irst Amendment concerns because of its obvious chillin effect on freespeech. -ee# e. g.# ,entile v. State Bar of )ev.# +(# . -. #(%(, #(&;1#(+# 2#??#4.-econd, the C<A is a criminal statute. In addition to the opprobrium and stima of acriminal conviction, the C<A threatens violators with penalties includin up to twoyears in prison for each act of violation. 'he severity of criminal sanctions may wellcause spea"ers to remain silent rather than communicate even aruably unlawful

words, ideas, and imaes. -ee, e. g.# -om+ro*s%i v. &fister# %;( . -. &9?, &?&

concerns than those implicated by the civil reulation reviewed in -enver Area Ed.3elecommunications Consortium# 6nc. v. 5CC# +#; . -. 9$9 2#??74.

'he /overnment arues that the statute is no more vaue than the obscenitystandard this Court established in Miller v. California# &#% . -. #+ 2#?9%4. But that isnot so. In Miller# this Court reviewed a criminal conviction aainst a commercialvendor who mailed brochures containin pictures of sexually explicit activities toindividuals who had not re8uested such materials. 6d.# at #;. >avin struled for some time to establish a definition of obscenity, we set forth in Miller the test for

obscenity that controls to this day

52a4 whether the averae person, applyin contemporary communitystandards would find that the wor", ta"en as a whole, appeals to the prurientinterestL 2b4 whether the wor" depicts or describes, in a patently offensiveway, sexual conduct specifically defined by the applicable state lawL and 2c4whether the wor", ta"en as a whole, lac"s serious literary, artistic, political, or scientific value.5 6d.# at $& 2internal 8uotation mar"s and citations omitted4.

Because the C<AJs 5patently offensive5 standard 2and, we assume, arguendo# itssynonymous 5indecent5 standard4 is one part of the three1pron Miller test, the/overnment reasons, it cannot be unconstitutionally vaue.

'he /overnmentJs assertion is incorrect as a matter of fact. 'he second pron of the

Miller testthe purportedly analoous standardcontains a critical re8uirement thatis omitted from the C<A that the proscribed material be 5specifically defined by theapplicable state law.5 'his re8uirement reduces the vaueness inherent in the open1ended term 5patently offensive5 as used in the C<A. 0oreover, the Miller definition islimited to 5sexual conduct,5 whereas the C<A extends also to include 2#4 5excretoryactivities5 as well as 2$4 5orans5 of both a sexual and excretory nature.

'he /overnmentJs reasonin is also flawed. *ust because a definition includin threelimitations is not vaue, it does not follow that one of those limitations, standin byitself, is not vaue.@%; Each of Miller [s additional two prons2#4 that, ta"en as awhole, the material appeal to the 5prurient5 interest, and 2$4 that it 5lac@" seriousliterary, artistic, political, or scientific value5critically limits the uncertain sweep of theobscenity definition. 'he second re8uirement is particularly important because, unli"ethe 5patently offensive5 and 5prurient interest5 criteria, it is not juded by

contemporary community standards. -ee &o"e v. 6llinois# &;# . -. &?9, +(( 2#?;94.'his 5societal value5 re8uirement, absent in the C<A, allows appellate courts toimpose some limitations and reularity on the definition by settin, as a matter of law,a national floor for socially redeemin value. 'he /overnmentJs contention that courtswill be able to ive such leal limitations to the C<AJs standards is belied by Miller [sown rationale for havin juries determine whether material is 5patently offensive5accordin to community standards that such 8uestions are essentially ones of fact.@%?

In contrast to Miller and our other previous cases, the C<A thus presents a reater threat of censorin speech that, in fact, falls outside the statuteJs scope. /iven thevaue contours of the coverae of the statute, it un8uestionably silences somespea"ers whose messaes would be entitled to constitutional protection. 'hat daner provides further reason for insistin that the statute not be overly broad. 'he C<AJs

burden on protected speech cannot be justified if it could be avoided by a morecarefully drafted statute.

would be a crime to send the roup an indecent messaewould surely burdencommunication amon adults.@&$



VI

!e are persuaded that the C<A lac"s the precision that the :irst Amendment re8uireswhen a statute reulates the content of speech. In order to deny minors access topotentially harmful speech, the C<A effectively suppresses a lare amount of speechthat adults have a constitutional riht to receive and to address to one another. 'hatburden on adult speech is unacceptable if less restrictive alternatives would be atleast as effective in achievin the leitimate purpose that the statute was enacted to

serve.

In evaluatin the free speech rihts of adults, we have made it perfectly clear that5@sexual expression which is indecent but not obscene is protected by the :irst Amendment.5 Sa+le# &?$ . -., at #$7. -ee also Carey v. &o"ulation Services 6nt>l#&%# . -. 79;, 9(# 2#?994 25@!here obscenity is not involved, we have consistentlyheld that the fact that protected speech may be offensive to some does not justify itssuppression54. Indeed, &acifica itself admonished that 5the fact that society may findspeech offensive is not a sufficient reason for suppressin it.5 &%; . -., at 9&+.

It is true that we have repeatedly reconied the overnmental interest in protectinchildren from harmful materials. -ee ,ins+erg# %?( . -., at 7%?L &acifica# &%; . -.,at 9&?. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the /overnment may not

5reduc@e the adult population . . . to . . . only what is fit for children.5 -enver# +#; .-., at 9+? 2internal 8uotation mar"s omitted4 28uotin Sa+le# &?$ . -., at #$;4. @&(

5@=eardless of the strenth of the overnmentJs interest5 in protectin children, 5@thelevel of discourse reachin a mailbox simply cannot be limited to that which would besuitable for a sandbox.5 Bolger v. oungs -rug &roducts Cor".# &7% . -. 7(, 9&19+2#?;%4.

'he <istrict Court was correct to conclude that the C<A effectively resembles the banon 5dial1a1porn5 invalidated in Sa+le. ?$? :. -upp., at ;+&. In Sa+le# &?$ . -., at #$?,this Court rejected the arument that we should defer to the conressional judmentthat nothin less than a total ban would be effective in preventin enterprisinyounsters from ainin access to indecent communications. Sa+le thus made clear that the mere fact that a statutory reulation of speech was enacted for the importantpurpose of protectin children from exposure to sexually explicit material does not

foreclose in8uiry into its validity. @&# As we pointed out last 'erm, that in8uiry embodiesan 5overarchin commitment5 to ma"e sure that Conress has desined its statute toaccomplish its purpose 5without imposin an unnecessarily reat restriction onspeech.5 -enver# +#; . -., at 9&#.

In aruin that the C<A does not so diminish adult communication, the /overnmentrelies on the incorrect factual premise that prohibitin a transmission whenever it is"nown that one of its recipients is a minor would not interfere with adult1to1adultcommunication. 'he findins of the <istrict Court ma"e clear that this premise isuntenable. /iven the sie of the potential audience for most messaes, in theabsence of a viable ae verification process, the sender must be chared with"nowin that one or more minors will li"ely view it. Fnowlede that, for instance, oneor more members of a #((1person chat roup will be a minorand therefore that it

'he <istrict Court found that at the time of trial existin technoloy did not include anyeffective method for a sender to prevent minors from obtainin access to itscommunications on the Internet without also denyin access to adults. 'he Courtfound no effective way to determine the ae of a user who is accessin materialthrouh e1mail, mail exploders, newsroups, or chat rooms. ?$? :. -upp., at ;&+2findins ?(1?&4. As a practical matter, the Court also found that it would beprohibitively expensive for noncommercial as well as some commercialspea"erswho have !eb sites to verify that their users are adults. 6d.# at ;&+1;&; 2findins ?+1

##74.@&% 'hese limitations must inevitably curtail a sinificant amount of adultcommunication on the Internet. By contrast, the <istrict Court found that 5@despite itslimitations, currently available user4+ased software suests that a reasonablyeffective method by which "arents can prevent their children from accessin sexuallyexplicit and other material which "arents may believe is inappropriate for their children will soon be widely available.5 6d.# at ;&$ 2findin 9%4 2emphases added4.

'he breadth of the C<AJs coverae is wholly unprecedented. nli"e the reulationsupheld in ,ins+erg and &acifica# the scope of the C<A is not limited to commercialspeech or commercial entities. Its open1ended prohibitions embrace all nonprofitentities and individuals postin indecent messaes or displayin them on their owncomputers in the presence of minors. 'he eneral, undefined terms 5indecent5 and5patently offensive5 cover lare amounts of nonpornoraphic material with seriouseducational or other value.@&& 0oreover, the 5community standards5 criterion asapplied to the Internet means that any communication available to a nationwideaudience will be juded by the standards of the community most li"ely to be offendedby the messae.@&+ 'he reulated subject matter includes any of the seven 5dirtywords5 used in the &acifica monoloue, the use of which the /overnmentJs expertac"nowleded could constitute a felony. -ee )lsen 'estimony, 'r. ol. , +%#7+&#(. It may also extend to discussions about prison rape or safe sexual practices,artistic imaes that include nude subjects, and aruably the card catalo of theCarneie 3ibrary.

:or the purposes of our decision, we need neither accept nor reject the /overnmentJssubmission that the :irst Amendment does not forbid a blan"et prohibition on all5indecent5 and 5patently offensive5 messaes communicated to a #91year1oldnomatter how much value the messae may contain and reardless of parental

approval. It is at least clear that the strenth of the /overnmentJs interest in protectinminors is not e8ually stron throuhout the coverae of this broad statute. nder theC<A, a parent allowin her #91year1old to use the family computer to obtaininformation on the Internet that she, in her parental judment, deems appropriatecould face a lenthy prison term. -ee &9 . -. C. R $$%2a42$4 2#??& ed., -upp. II4.-imilarly, a parent who sent his #91year1old collee freshman information on birthcontrol via e1mail could be incarcerated even thouh neither he, his child, nor anyonein their home community found the material 5indecent5 or 5patently offensive,5 if thecollee townJs community thouht otherwise.

'he breadth of this content1based restriction of speech imposes an especially heavyburden on the /overnment to explain why a less restrictive provision would not be aseffective as the C<A. It has not done so. 'he aruments in this Court have referred topossible alternatives such as re8uirin that indecent material be 5taed5 in a way

that facilitates parental control of material comin into their homes, ma"in exceptions

for messaes with artistic or educational value, providin some tolerance for parentalchoice, and reulatin some portions of the Internetsuch as commercial !eb sitesdifferently from others such as chat rooms articularly in the liht of the absence

outside the C<AJs 5patently offensive5 and 5indecent5 prohibitions. -ee also n. %9,su"ra.

https://scholar.google.com/scholar_case?case=12959937071120946576&q=Reno+v.+American+Civil+Liberties+Union,+521+U.S.+844+(1997)&hl=en&as_sdt=2006&as_vis=1&scilh=0










differently from others, such as chat rooms. articularly in the liht of the absenceof any detailed findins by the Conress, or even hearins addressin the specialproblems of the C<A, we are persuaded that the C<A is not narrowly tailored if thatre8uirement has any meanin at all.

VIII

In an attempt to curtail the C<AJs facial overbreadth, the /overnment advances threeadditional aruments for sustainin the ActJs affirmative prohibitions 2#4 that the C<A

is constitutional because it leaves open ample 5alternative channels5 of communicationL 2$4 that the plain meanin of the C<AJs 5"nowlede5 and 5specificperson5 re8uirement sinificantly restricts its permissible applicationsL and 2%4 that theC<AJs prohibitions are 5almost always5 limited to material lac"in redeemin socialvalue.

'he /overnment first contends that, even thouh the C<A effectively censorsdiscourse on many of the InternetJs modalitiessuch as chat roups, newsroups,and mail explodersit is nonetheless constitutional because it provides a 5reasonableopportunity5 for spea"ers to enae in the restricted speech on the !orld !ide !eb.Brief for Appellants %?. 'his arument is unpersuasive because the C<A reulatesspeech on the basis of its content. A 5time, place, and manner5 analysis is thereforeinapplicable. -ee Consolidated Edison Co. of ). . v. &u+lic Serv. Comm>n of ). .#&&9 . -. +%(, +%7 2#?;(4. It is thus immaterial whether such speech would be

feasible on the !eb 2which, as the /overnmentJs own expert ac"nowleded, wouldcost up to Q#(,((( if the spea"erJs interests were not accommodated by an existin!eb site, not includin costs for data base manaement and ae verification4. 'he/overnmentJs position is e8uivalent to aruin that a statute could ban leaflets oncertain subjects as lon as individuals are free to publish boo"s. In invalidatin anumber of laws that banned leaflettin on the streets regardless of their content, weexplained that 5one is not to have the exercise of his liberty of expression inappropriate places abrided on the plea that it may be exercised in some other place.5 Schneider v. State '3o*n of 6rvington(# %(; . -. #&9, #7% 2#?%?4.

'he /overnment also asserts that the 5"nowlede5 re8uirement of both RR $$%2a4 and2d4, especially when coupled with the 5specific child5 element found in R $$%2d4, savesthe C<A from overbreadth. Because both sections prohibit the dissemination of indecent messaes only to persons "nown to be under #;, the /overnment arues, itdoes not re8uire transmitters to 5refrain from communicatin indecent material toadultsL they need only refrain f rom disseminatin such materials to persons they "nowto be under #;.5 Brief for Appellants $&. 'his arument inores the fact that mostInternet forumsincludin chat rooms, newsroups, mail exploders, and the !ebare open to all comers. 'he /overnmentJs assertion that the "nowlede re8uirementsomehow protects the communications of adults is therefore untenable. Even thestronest readin of the 5specific person5 re8uirement of R $$%2d4 cannot save thestatute. It would confer broad powers of censorship, in the form of a 5hec"lerJs veto,5upon any opponent of indecent speech who miht simply lo on and inform thewould1be discoursers that his #91year1old childa 5specific person . . . under #;years of ae,5 &9 . -. C. R $$%2d42#42A4 2#??& ed., -upp. II4would be present.

:inally, we find no textual support for the /overnmentJs submission that material

havin scientific, educational, or other redeemin social value will necessarily fall

IM

'he /overnmentJs three remainin aruments focus on the defenses provided in R$$%2e42+4.@&7 :irst, relyin on the 5ood faith, reasonable, effective, and appropriateactions5 provision, the /overnment suests that 5tain5 provides a defense thatsaves the constitutionality of the C<A. 'he suestion assumes that transmitters mayencode their indecent communications in a way that would indicate their contents,thus permittin recipients to bloc" their reception with appropriate software. It is the

re8uirement that the ood1faith action must be 5effective5 that ma"es this defenseillusory. 'he /overnment reconies that its proposed screenin software does notcurrently exist. Even if it did, there is no way to "now whether a potential recipient willactually bloc" the encoded material. !ithout the impossible "nowlede that everyuardian in America is screenin for the 5ta,5 the transmitter could not reasonablyrely on its action to be 5effective.5

:or its second and third aruments concernin defenses which we can consider toetherthe /overnment relies on the latter half of R $$%2e42+4, which applies whenthe transmitter has restricted access by re8uirin use of a verified credit card or adultidentification. -uch verification is not only technoloically available but actually isused by commercial providers of sexually explicit material. 'hese providers, therefore,would be protected by the defense. nder the findins of the <istrict Court, however,it is not economically feasible for most noncommercial spea"ers to employ such

verification. Accordinly, this defense would not sinificantly narrow the statuteJsburden on noncommercial speech. Even with respect to the commercialpornoraphers that would be protected by the defense, the /overnment failed toadduce any evidence that these verification techni8ues actually preclude minors fromposin as adults.@&9 /iven that the ris" of criminal sanctions 5hovers over each contentprovider, li"e the proverbial sword of <amocles,5@&; the <istrict Court correctly refusedto rely on unproven future technoloy to save the statute. 'he /overnment thus failedto prove that the proffered defense would sinificantly reduce the heavy burden onadult speech produced by the prohibition on offensive displays.

!e aree with the <istrict CourtJs conclusion that the C<A places an unacceptablyheavy burden on protected speech, and that the defenses do not constitute the sort of 5narrow tailorin5 that will save an otherwise patently invalid unconstitutionalprovision. In Sa+le# &?$ . -., at #$9, we remar"ed that the speech restriction atissue there amounted to 5[burn@in the house to roast the pi.J 5 'he C<A, castin afar dar"er shadow over free speech, threatens to torch a lare sement of the Internetcommunity.

M

At oral arument, the /overnment relied heavily on its ultimate fall1bac" position If this Court should conclude that the C<A is insufficiently tailored, it ured, we shouldsave the statuteJs constitutionality by honorin the severability clause, see &9 . -. C.R 7(;, and construin nonseverable terms narrowly. In only one respect is thisarument acceptable.

A severability clause re8uires textual provisions that can be severed. !e will follow R7(;Js uidance by leavin constitutional textual elements of the statute intact in the

one place where they are, in fact, severable. 'he 5indecency5 provision, &9 . -. C. R$$%2a4 2#??& ed., -upp. II4, applies to 5any comment, re8uest, suestion, proposal,imae or other communication which is o+scene or indecent 5 2Emphasis added 4

MI

In this Court, thouh not in the <istrict Court, the /overnment asserts thatin




















imae, or other communication which is o+scene or indecent. 2Emphasis added.4 Appellees do not challene the application of the statute to obscene speech, which,they ac"nowlede, can be banned totally because it enjoys no :irst Amendmentprotection. -ee Miller# &#% . -., at #;. As set forth by the statute, the restriction of 5obscene5 material enjoys a textual manifestation separate from that for 5indecent5material, which we have held unconstitutional. 'herefore, we will sever the term 5or indecent5 from the statute, leavin the rest of R $$%2a4 standin. In no other respect,however, can R $$%2a4 or R $$%2d4 be saved by such a textual surery.

'he /overnment also draws on an additional, less traditional aspect of the C<AJsseverability clause, &9 . -. C. R 7(;, which as"s any reviewin court that holds thestatute facially unconstitutional not to invalidate the C<A in application to 5other persons or circumstances5 that miht be constitutionally permissible. It further invo"esthis CourtJs admonition that, absent 5countervailin considerations,5 a statute should5be declared invalid to the extent it reaches too far, but otherwise left intact.5 Broc%ett v. S"o%ane Arcades# 6nc.# &9$ . -. &?#, +(%1+(& 2#?;+4. 'here are two flaws in thisarument.

:irst, the statute that rants our jurisdiction for this expedited review, R +7# of the'elecommunications Act of #?7#, note followin &9 . -. C. R $$% 2#??& ed., -upp.II4, limits that jurisdictional rant to actions challenin the C<A 5on its face.5Consistent with R +7#, the plaintiffs who brouht this suit and the three1jude panelthat decided it treated it as a facial challene. !e have no authority, in this particular

posture, to convert this litiation into an 5as1applied5 challene. Nor, iven the vastarray of plaintiffs, the rane of their expressive activities, and the vaueness of thestatute, would it be practicable to limit our holdin to a judicially defined set of specificapplications.

-econd, one of the 5countervailin considerations5 mentioned in Broc%ett is presenthere. In considerin a facial challene, this Court may impose a limitin constructionon a statute only if it is 5readily susceptible5 to such a construction. 9irginia v. American Boo%sellers Assn.# 6nc.# &;& . -. %;%, %?9 2#?;;4. -ee also Ernoni% v.:ac%sonville# &$$ . -. $(+, $#7 2#?9+4 25readily subject5 to narrowin construction4.'he open1ended character of the C<A provides no uidance whatever for limitin itscoverae.

'his case is therefore unli"e those in which we have construed a statute narrowlybecause the text or other source of conressional intent identified a clear line that thisCourt could draw. Cf., e. g.# Broc%ett# &9$ . -., at +(&1+(+ 2invalidatin obscenitystatute only to the extent that word 5lust5 was actually or effectively excised fromstatute4L 0nited States v. ,race# &7# . -. #9#, #;(1#;% 2#?;%4 2invalidatin federalstatute bannin expressive displays only insofar as it extended to public sidewal"swhen clear line could be drawn between sidewal"s and other rounds that comportedwith conressional purpose of protectin the buildin, rounds, and people therein4.=ather, our decision in 0nited States v. 3reasury Em"loyees# +#% . -. &+&, &9?, n.$7 2#??+4, is applicable. In that case, we declined to 5dra@w one or more linesbetween cateories of speech covered by an overly broad statute, when Conresshas sent inconsistent sinals as to where the new line or lines should be drawn5because doin so 5involves a far more serious invasion of the leislative domain.5 @&?

'his Court 5will not rewrite a . . . law to conform it to constitutional re8uirements.5

American Boo%sellers# &;& . -., at %?9.@+(

, ,addition to its interest in protectin childrenits 5@e8ually sinificant5 interest infosterin the rowth of the Internet provides an independent basis for upholdin theconstitutionality of the C<A. Brief for Appellants #?. 'he /overnment apparentlyassumes that the unreulated availability of 5indecent5 and 5patently offensive5material on the Internet is drivin countless citiens away from the medium becauseof the ris" of exposin themselves or their children to harmful material.

!e find this arument sinularly unpersuasive. 'he dramatic expansion of this new

mar"etplace of ideas contradicts the factual basis of this contention. 'he recorddemonstrates that the rowth of the Internet has been and continues to bephenomenal. As a matter of constitutional tradition, in the absence of evidence to thecontrary, we presume that overnmental reulation of the content of speech is moreli"ely to interfere with the free exchane of ideas than to encourae it. 'he interest inencourain freedom of expression in a democratic society outweihs any theoreticalbut unproven benefit of censorship.

:or the foreoin reasons, the judment of the <istrict Court is affirmed.

6t is so ordered.

NI/E* S/A/ES V. ILLIA!S

Su're+e Cour( o) #"(e S(a(e%.

pandered as child pornoraphy, reardless of whether it actually was that. -ee id.# at$+9, #$$ -.Ct. #%;? 2citin #; .-.C. R $$+72;42<44. A person could thus faceprosecution for possessin unobjectionable material that someone else had










































https://scholar.google.com/scholar_case?case=4016009721484982910&q=United+States+v.+Williams,+553+U.S.+285+(2008)&hl=en&as_sdt=2006&as_vis=1





'

553 .S. 285 *e&"e !ay 1, 2008.

NI/E* S/A/ES, e("("o#er,;.!"&$ae ILLIA!S.

u%("&e SCALIA delivered the opinion of the Court.

-ection $$+$A2a42%42B4 of 'itle #;, #"(e S(a(e% Code, criminalies, in certainspecified circumstances, the panderin or solicitation of child pornoraphy. 'his casepresents the 8uestion whether that statute is overbroad under the :irst Amendment or impermissibly vaue under the <ue rocess Clause of the :ifth Amendment.

I

A

!e have lon held that obscene speechsexually explicit material that violatesfundamental notions of decencyis not protected by the :irst Amendment. -ee /othv. @nited States# %+& .S. &97, &;&1&;+, 99 -.Ct. #%(&, # 3.Ed.$d #&?; 2#?+94 . Butto protect explicit material that has social value, we have limited the scope of theobscenity exception, and have overturned convictions for the distribution of sexually

raphic but nonobscene material. -ee Miller v. California# &#% .S. #+, $%1$&, ?%-.Ct. $7(9, %9 3.Ed.$d &#? 2#?9%4 L see also, e.g.# :en%ins v. ,eorgia# &#; .S. #+%,#7#, ?& -.Ct. $9+(, &# 3.Ed.$d 7&$ 2#?9&4.

)ver the last $+ years, we have confronted a related and overlappin cateory of proscribable speech child pornoraphy. -ee Ashcroft v. 5ree S"eech Coalition# +%+.S. $%&, #$$ -.Ct. #%;?, #+$ 3.Ed.$d &(% 2$(($4L Os+orne v. Ohio# &?+ .S. #(%,##( -.Ct. #7?#, #(? 3.Ed.$d ?; 2#??(4L )e* or% v. 5er+er# &+; .S. 9&9, #($ -.Ct.%%&;, 9% 3.Ed.$d ###% 2#?;$4. 'his consists of sexually explicit visual portrayals thatfeature children. !e have held that a statute which proscribes the distribution of allchild pornoraphy, even material that does not 8ualify as obscenity, does not on itsface violate the :irst Amendment. -ee id.# at 9+#19+%, 9+7197&, #($ -.Ct. %%&;.0oreover, we have held that the overnment may criminalie the possession of childpornoraphy, even thouh it may not criminalie the mere possession of obscene

material involvin adults. Compare Os+orne# su"ra# at ###, ##( -.Ct. #7?#, withStanley v. ,eorgia# %?& .S. ++9, +7;, ;? -.Ct. #$&%, $$ 3.Ed.$d +&$ 2#?7?4.

'he broad authority to proscribe child pornoraphy is not, however, unlimited. :our 'erms ao, we held facially overbroad two provisions of the federal Childornoraphy rotection Act of #??7 2CA4. 5ree S"eech Coalition# +%+ .S., at $+;,#$$ -.Ct. #%;?. 'he first of these banned the possession and distribution of 5[anyvisual depictionJ5 that 5[is, or appears to be, of a minor enain in sexually explicitconduct,J5 even if it contained only youthful1loo"in adult actors or virtual imaes of children enerated by a computer. 6d.# at $%?1$&#, #$$ -.Ct. #%;? 28uotin #; .-.C.R $$+72;42B44. 'his was invalid, we explained, because the child1protection rationalefor speech restriction does not apply to materials produced without children. -ee +%+.S., at $&?1$+#, $+&, #$$ -.Ct. #%;?. 'he second provision at issue in 5ree S"eech

Coalition criminalied the possession and distribution of material that had been

prosecution for possessin unobjectionable material that someone else hadpandered. +%+ .S., at $+;, #$$ -.Ct. #%;?. !e held that this prohibition, which did5more than prohibit panderin,5 was also facially overbroad. 6+id.

After our decision in 5ree S"eech Coalition# Conress went bac" to the drawin boardand produced leislation with the unli"ely title of the rosecutorial =emedies and)ther 'ools to end the Exploitation of Children 'oday Act of $((%, ##9 -tat. 7+(. !eshall refer to it as the Act. -ection +(% of the Act amended #; .-.C. R $$+$A to adda new panderin and solicitation provision, relevant portions of which now read as

follows

52a4 Any person who

52%4 "nowinly

. . . . .

52B4 advertises, promotes, presents, distributes, or solicits throuh the mails,or in interstate or forein commerce by any means, includin by computer,any material or purported material in a manner that reflects the belief, or thatis intended to cause another to believe, that the material or purportedmaterial is, or contains

52i4 an obscene visual depiction of a minor enain in sexually explicitconductL or

52ii4 a visual depiction of an actual minor enain in sexually explicitconduct,

. . . . .

5shall be punished as provided in subsection 2b4.5 R $$+$A2a42%42B4 2$(((ed., -upp. 4.

-ection $$+72$42A4 defines 5sexually explicit conduct5 as

5actual or simulated

52i4 sexual intercourse, includin enital1enital, oral1enital, anal1enital, or oral1anal, whether between persons of the same or opposite sexL

52ii4 bestialityL

52iii4 masturbationL

52iv4 sadistic or masochistic abuseL or

52v4 lascivious exhibition of the enitals or pubic area of any person.5

iolation of R $$+$A2a42%42B4 incurs a minimum sentence of + years imprisonmentand a maximum of $( years. #; .-.C. R $$+$A2b42#4.

'he ActJs express findins indicate that Conress was concerned that limitin the

child1pornoraphy prohibition to material that could be "roved to feature actual

children, as our decision in 5ree S"eech Coalition re8uired, would enable many childpornoraphers to evade conviction. -ee R +(#2?4, 2#(4, ##9 -tat. 799. 'he emerenceof new technoloy and the repeated retransmission of picture files over the Internet

balance between competin social costs. 9irginia v. 7ic%s# +%? .S. ##%, ##?1#$(,#$% -.Ct. $#?#, #+7 3.Ed.$d #&; 2$((%4. )n the one hand, the threat of enforcementof an overbroad law deters people from enain in constitutionally protected speech,




























































































of new technoloy and the repeated retransmission of picture files over the Internetcould ma"e it nearly impossible to prove that a particular imae was produced usinreal childreneven thouh 5@there is no substantial evidence that any of the childpornoraphy imaes bein traffic"ed today were made other than by the abuse of realchildren,5 virtual imain bein prohibitively expensive. R +(#2+4, 294, 2;4, 2##4, id.# at797179;L see also <ept. of *ustice, )ffice of Community )riented olicin -ervices,=. !ortley H -. -mallbone, Child ornoraphy on the Internet ? 20ay $((74, on lineat hhtpDDwww.cops. usdoj.ovDmimeDopen.pdfSItem\#9$? 2hereinafter Childornoraphy on the Internet4 2as visited *an. 9, 2008, and available in Cler" of CourtJs

case file4.

'he followin facts appear in the opinion of the Eleventh Circuit, &&& :.%d #$;7, #$;;2$((74. )n April $7, $((&, respondent 0ichael ""a+%, usin a sexually explicitscreen name, sined in to a public Internet chat room. A -ecret -ervice aent hadalso sined in to the chat room under the moni"er 53isa n 0iami.5 'he aent noticedthat ""a+% had posted a messae that read 5<ad of toddler has [oodJ pics of her an @sic me for swap of your toddler pics, or live cam.5 'he aent struc" up aconversation with ""a+%, leadin to an electronic exchane of nonpornoraphicpictures of children. 2'he aentJs picture was in fact a doctored photoraph of anadult.4 -oon thereafter, ""a+% messaed that he had photoraphs of menmolestin his &1year1old dauhter. -uspicious that 53isa n 0iami5 was a law1

enforcement aent, before proceedin further ""a+% demanded that the aentproduce additional pictures. !hen he did not, ""a+% posted the followin publicmessae in the chat room 5>E=E =))0L I CAN ' 3INF CX I0 :)= =EA3->E CAN'.5 Appended to this declaration was a hyperlin" that, when clic"ed, led toseven pictures of actual children, aed approximately + to #+, enain in sexuallyexplicit conduct and displayin their enitals. 'he -ecret -ervice then obtained asearch warrant for ""a+%% home, where aents seied two hard drives containinat least $$ imaes of real children enaed in sexually explicit conduct, some of itsadomasochistic.

""a+% was chared with one count of panderin child pornoraphy under R$$+$A2a42%42B4 and one count of possessin child pornoraphy under R $$+$A2a42+42B4. >e pleaded uilty to both counts but reserved the riht to challene the

constitutionality of the panderin conviction. 'he <istrict Court rejected his challene,and sentenced him to concurrent 7(1month sentences on the two counts. No. (&1$($??1C=10I<<3EB=))F- 2-< :la., Au. $(, $((&4, App. B to et. for Cert. &7a17?a. 'he #"(e S(a(e% Court of Appeals for the Eleventh Circuit reversed thepanderin conviction, holdin that the statute was both overbroad and impermissiblyvaue. &&& :.%d, at #%(;1#%(?.@#

!e ranted certiorari. +&? .S. ]]], #$9 -.Ct. #;9&, #79 3.Ed.$d %7% 2$((94.

II

A

Accordin to our :irst Amendment overbreadth doctrine, a statute is facially invalid if itprohibits a substantial amount of protected speech. 'he doctrine see"s to stri"e a

of an overbroad law deters people from enain in constitutionally protected speech,inhibitin the free exchane of ideas. )n the other hand, invalidatin a law that insome of its applications is perfectly constitutional particularly a law directed atconduct so antisocial that it has been made criminal has obvious harmful effects. Inorder to maintain an appropriate balance, we have viorously enforced there8uirement that a statuteJs overbreadth be su+stantial# not only in an absolute sense,but also relative to the statuteJs plainly leitimate sweep. -ee Board of 3rustees of State 0niv. of ).. v. 5ox# &?$ .S. &7?, &;+, #(? -.Ct. %($;, #(7 3.Ed.$d %;;2#?;?4L Broadric% v. O%lahoma# &#% .S. 7(#, 7#+, ?% -.Ct. $?(;, %9 3.Ed.$d ;%(

2#?9%4. Invalidation for overbreadth is 5[5stron medicine5J5 that is not to be 5casuallyemployed.5 Los Angeles &olice -e"t. v. @nited /e"orting &u+lishing Cor".# +$; .S.%$, %?, #$( -.Ct. &;%, #&+ 3.Ed.$d &+# 2#???4 28uotin 5er+er# &+; .S., at 97?, #($-.Ct. %%&;4.

'he first step in overbreadth analysis is to construe the challened statuteL it isimpossible to determine whether a statute reaches too far without first "nowin whatthe statute covers. /enerally spea"in, R $$+$A2a42%42B4 prohibits offers to provideand re8uests to obtain child pornoraphy. 'he statute does not re8uire the actualexistence of child pornoraphy. In this respect, it differs from the statutes in 5er+er#Os+orne# and 5ree S"eech Coalition# which prohibited the possession or distributionof child pornoraphy. =ather than taretin the underlyin material, this statute bansthe collateral speech that introduces such material into the child1pornoraphydistribution networ". 'hus, an Internet user who solicits child pornoraphy from anundercover aent violates the statute, even if the officer possesses no childpornoraphy. 3i"ewise, a person who advertises virtual child pornoraphy asdepictin actual children also falls within the reach of the statute.

'he statuteJs definition of the material or purported material that may not be panderedor solicited precisely trac"s the material held constitutionally proscribable in 5er+er and Miller8 obscene material depictin 2actual or virtual4 children enaed in sexuallyexplicit conduct, and any other material depictin actual children enaed in sexuallyexplicit conduct. -ee 5ree S"eech Coalition# +%+ .S., at $&+1$&7, #$$ -.Ct. #%;?2statin that the :irst Amendment does not protect obscenity or pornoraphyproduced with actual children4L id.# at $+7, #$$ -.Ct. #%;? 2holdin invalid thechallened provision of the CA because it 5cover@ed materials beyond thecateories reconied in 5er+er and Miller 54.

A number of features of the statute are important to our analysis

:irst, the statute includes a scienter re8uirement. 'he first word of R $$+$A2a42%45"nowinly5applies to both of the immediately followin subdivisions, both thepreviously existin R $$+$A2a42%42A4@$ and the new R $$+$A2a42%42B4 at issue here.!e thin" that the best readin of the term in context is that it applies to every elementof the two provisions. 'his is not a case where rammar or structure enables thechallened provision or some of its parts to be read apart from the 5"nowinly5re8uirement. >ere 5"nowinly5 introduces the challened provision itself, ma"in clear that it applies to that provision in its entiretyL and there is no rammatical barrier toreadin it that way.

-econd, the statuteJs strin of operative verbs5advertises, promotes, presents,

distributes, or solicits5is reasonably read to have a transactional connotation. 'hat

is to say, the statute penalies speech that accompanies or see"s to induce a transfer of child pornoraphy via reproduction or physical delivery from one person toanother. :or three of the verbs, this is obvious advertisin, distributin, and solicitin

fact that, as an objective matter, the manner of 5advertisin, promotin, presentin,distributin, or solicitin5 plainly souht to convey that the material was childpornoraphy.4
















































, , , are steps ta"en in the course of an actual or proposed transfer of a product, typicallybut not exclusively in a commercial mar"et. !hen ta"en in isolation, the tworemainin verbs 5promotes5 and 5presents5are susceptible of multiple and wide1ranin meanins. In context, however, those meanins are narrowed by thecommonsense canon of noscitur a sociiswhich counsels that a word is iven moreprecise content by the neihborin words with which it is associated. -ee :arec%i v.,.-. Searle N Co.# %79 .S. %(%, %(9, ;# -.Ct. #+9?, 7 3.Ed.$d ;+? 2#?7#4 L $A N.-iner H *. -iner, -utherland -tatutes and -tatutory Construction R &9.#7 29th

ed.$((94. 5romotes,5 in a list that includes 5solicits,5 5distributes,5 and 5advertises,5 ismost sensibly read to mean the act of recommendin purported child pornoraphy toanother person for his ac8uisition. -ee American >eritae <ictionary #&(% 2&thed.$(((4 2def. & 5'o attempt to sell or popularie by advertisin or publicity54.-imilarly, 5presents,5 in the context of the other verbs with which it is associated,means showin or offerin the child pornoraphy to another person with a view to hisac8uisition. -ee id.# at #%;; 2def. %a 5'o ma"e a ift or award of54. 2'he envisionedac8uisition, of course, could be an electronic one, for example reproduction of theimae on the recipientJs computer screen.4

'o be clear, our conclusion that all the words in this list relate to transactions is not tosay that they relate to commercial transactions. )ne could certainly 5distribute5 childpornoraphy without expectin payment in return. Indeed, in much Internet filesharin of child pornoraphy each participant ma"es his files available for free toother participantsas ""a+% did in this case. 5<istribution may involvesophisticated pedophile rins or oranied crime roups that operate for profit, but inmany cases, is carried out by individual amateurs who see" no financial reward.5Child ornoraphy on the Internet ?. 'o run afoul of the statute, the speech need onlyaccompany or see" to induce the transfer of child pornoraphy from one person toanother.

'hird, the phrase 5in a manner that reflects the belief5 includes both subjective andobjective components. 5@A manner that reflects the belief5 is 8uite different from 5amanner that would ive one cause to believe.5 'he first formulation suests that thedefendant must actually have held the subjective 5belief5 that the material or purported material was child pornoraphy. 'hus, a misdescription that leads thelistener to believe the defendant is offerin child pornoraphy, when the defendant in

fact does not believe the material is child pornoraphy, does not violate this pron of the statute. 2It may, however, violate the 5manner . . . that is intended to causeanother to believe5 pron if the misdescription is intentional.4 'here is also anobjective component to the phrase 5manner that reflects the belief.5 'he statement or action must objectively manifest a belief that the material is child pornoraphyL a merebelief, without an accompanyin statement or action that would lead a reasonableperson to understand that the defendant holds that belief, is insufficient.

:ourth, the other "ey phrase, 5in a manner . . . that is intended to cause another tobelieve,5 contains only a subjective element 'he defendant must 5intend5 that thelistener believe the material to be child pornoraphy, and must select a manner of 5advertisin, promotin, presentin, distributin, or solicitin5 the material that hethin"s will enender that beliefwhether or not a reasonable person would thin" thesame. 2)f course in the ordinary case the proof of the defendantJs intent will be the

p p y 4

:ifth, the definition of 5sexually explicit conduct5 2the visual depiction of which,enaed in by an actual minor, is covered by the ActJs panderin and solicitinprohibition even when it is not obscene4 is very similar to the definition of 5sexualconduct5 in the New Por" statute we upheld aainst an overbreadth challene in5er+er. 'hat defined 5sexual conduct5 as 5[actual or simulated sexual intercourse,deviate sexual intercourse, sexual bestiality, masturbation, sado1masochistic abuse,or lewd exhibition of the enitals.J5 &+; .S., at 9+#, #($ -.Ct. %%&;. Conress used

essentially the same constitutionally approved definition in the present Act. If anythin, the fact that the defined term here is 5sexually ex"licit conduct,5 rather than2as in 5er+er 4 merely 5sexual conduct,5 renders the definition more immune fromfacial constitutional attac". 5@-imulated sexual intercourse5 2a phrase found in the5er+er definition as well4 is even less susceptible here of application to the sorts of sex scenes found in =1rated movieswhich suest that intercourse is ta"in placewithout explicitly depictin it, and without causin viewers to believe that the actorsare actually enain in intercourse. 5-exually ex"licit conduct5 connotes actualdepiction of the sex act rather than merely the suestion that it is occurrin. And5simulated5 sexual intercourse is not sexual intercourse that is merely suested, butrather sexual intercourse that is explicitly portrayed, even thouh 2throuh cameratric"s or otherwise4 it may not actually have occurred. 'he portrayal must cause areasonable viewer to believe that the actors actually enaed in that conduct oncamera. Critically, unli"e in 5ree S"eech Coalition# R $$+$A2a42%42B42ii4Js re8uirementof a 5visual depiction of an actual minor5 ma"es clear that, althouh the sexualintercourse may be simulated, it must involve actual children 2unless it is obscene4.'his chane eliminates any possibility that virtual child pornoraphy or sex betweenyouthful1loo"in adult actors miht be covered by the term 5simulated sexualintercourse.5

!e now turn to whether the statute, as we have construed it, criminalies asubstantial amount of protected expressive activity.

)ffers to enae in illeal transactions are cateorically excluded from :irst Amendment protection. &itts+urgh &ress Co. v. &itts+urgh Comm>n on 7uman/elations# &#% .S. %97, %;;, ?% -.Ct. $++%, %9 3.Ed.$d 77? 2#?9%4 L ,i+oney v.Em"ire Storage N 6ce Co.# %%7 .S. &?(, &?;, 7? -.Ct. 7;&, ?% 3.Ed. ;%& 2#?&?4. )newould thin" that this principle resolves the present case, since the statute criminaliesonly offers to provide or re8uests to obtain contrabandchild obscenity and childpornoraphy involvin actual children, both of which are proscribed, see #; .-.C. R#&77A2a4, R $$+$A2a42+42B4 2$((( ed., -upp. 4, and the proscription of which isconstitutional, see 5ree S"eech Coalition# +%+ .S., at $&+1$&7, $+7, #$$ -.Ct. #%;?.'he Eleventh Circuit, however, believed that the exclusion of :irst Amendmentprotection extended only to commercial offers to provide or receive contraband5Because @the statute is not limited to commercial speech but extends also to non1commercial promotion, presentation, distribution, and solicitation, we must subject thecontent1based restriction of the =)'EC' Act panderin provision to strictscrutiny.....5 &&& :.%d, at #$?;.

'his mista"es the rationale for the cateorical exclusion. It is based not on the lessprivileed :irst Amendment status of commercial speech, see Central 7udson ,as NElec. Cor". v. &u+lic Serv. Comm>n of ). .# &&9 .S. ++9, +7$1+7%, #(( -.Ct. $%&%,

'he Eleventh Circuit found 5particularly objectionable5 the fact that the 5reflects thebelief5 pron of the statute could ensnare a person who mista"enly believes thatmaterial is child pornoraphy. 6+id. 'his objection has two conceptually distinct parts.













































"7+ 3.Ed.$d %&# 2#?;(4, but on the principle that offers to ive or receive what it isunlawful to possess have no social value and thus, li"e obscenity, enjoy no :irst Amendment protection. -ee &itts+urgh &ress# su"ra# at %;91%;?, ?% -.Ct. $++%.@%

0any lon established criminal proscriptionssuch as laws aainst conspiracy,incitement, and solicitation criminalie speech 2commercial or not4 that is intendedto induce or commence illeal activities. -ee, e.g.# A3I, 0odel enal Code R +.($2#42#?;+4 2solicitation to commit a crime4L R +.(%2#42a4 2conspiracy to commit a crime4.)ffers to provide or re8uests to obtain unlawful material, whether as part of a

commercial exchane or not, are similarly undeservin of :irst Amendmentprotection. It would be an odd constitutional principle that permitted the overnment toprohibit offers to sell illeal drus, but not offers to ive them away for f ree.

'o be sure, there remains an important distinction between a proposal to enae inilleal activity and the abstract advocacy of illeality. -ee Branden+urg v. Ohio# %?+.S. &&&, &&91&&;, ;? -.Ct. #;$9, $% 3.Ed.$d &%( 2#?7?4 '"er curiam(< see also)AAC& v. Clai+orne 7ard*are Co.# &+; .S. ;;7, ?$;1?$?, #($ -.Ct. %&(?, 9%3.Ed.$d #$#+ 2#?;$4. 'he Act before u% does not prohibit advocacy of childpornoraphy, but only offers to provide or re8uests to obtain it. 'here is no doubt thatthis prohibition falls well within constitutional bounds. 'he constitutional defect wefound in the panderin provision at issue in 5ree S"eech Coalition was that it went+eyond panderin to prohibit possession of material that could not otherwise beproscribed. +%+ .S., at $+;, #$$ -.Ct. #%;?.

In sum, we hold that offers to provide or re8uests to obtain child pornoraphy arecateorically excluded from the :irst Amendment. -ince the Eleventh Circuiterroneously concluded otherwise, it applied strict scrutiny to R $$+$A2a42%42B4, lodinthree fatal objections. !e address these objections because they could be recast asaruments that Conress has one beyond the cateorical exception.

'he Eleventh Circuit believed it a constitutional difficulty that no child pornoraphyneed exist to trier the statute. In its view, the fact that the statute could punish a5braart, exaerator, or outriht liar5 rendered it unconstitutional. &&& :.%d, at #$?;.'hat seems to u% a strane constitutional calculus. Althouh we have held that theovernment can ban +oth fraudulent offers, see, e.g.# 6llinois ex rel. Madigan v.3elemar%eting Associates# 6nc.# +%; .S. 7((, 7##17#$, #$% -.Ct. #;$?, #++ 3.Ed.$d

9?% 2$((%4, and offers to provide illeal products, the Eleventh Circuit would forbid theovernment from punishin fraudulent offers to "rovide illegal "roducts. !e see noloic in that positionL if anythin, such statements are doubly excluded from the :irst Amendment.

'he Eleventh Circuit held that under Branden+urg# the 5non1commercial, non1incitefulpromotion of illeal child pornoraphy5 is protected, and R $$+$A2a42%42B4 thereforeoverreaches by criminaliin the promotion of child pornoraphy. &&& :.%d, at #$?;. As we have discussed earlier, however, the term 5promotes5 does not refer to abstractadvocacy, such as the statement 5I believe that child pornoraphy should be leal5 or even 5I encourae you to obtain child pornoraphy.5 It refers to the recommendationof a particular piece of purported child pornoraphy with the intent of initiatin atransfer.

p p y j p y p:irst, the Eleventh Circuit thouht that it would be unconstitutional to punish someonefor mista"enly distributin virtual child pornoraphy as real child pornoraphy. !edisaree. )ffers to deal in illeal products or otherwise enae in illeal activity do notac8uire :irst Amendment protection when the offeror is mista"en about the factualpredicate of his offer. 'he panderin and solicitation made unlawful by the Act aresorts of inchoate crimesacts loo"in toward the commission of another crime, thedelivery of child pornoraphy. As with other inchoate crimesattempt and conspiracy,for exampleimpossibility of completin the crime because the facts were not as the

defendant believed is not a defense. 5All courts are in areement that what is usuallyreferred to as [factual impossibilityJ is no defense to a chare of attempt.5 $ !.3a:ave, -ubstantive Criminal 3aw R ##.+2a42$4 2$d ed.$((%4. 2'he author ives as anexample 5the intended sale of an illeal dru @that actually involved a differentsubstance.5 6+id.4 -ee also @nited States v. 7amric%# &% :.%d ;99, ;;+ 2C.A.& #??+42en banc4 2holdin that impossibility is no defense to attempt and citin the holdins of four other Circuits4L A3I, 0odel enal Code R +.(#, Comment 2in attempt prosecutions5the defendantJs conduct should be measured accordin to the circumstances as hebelieves them to be, rather than the circumstances as they may have existed in fact54.

nder this headin the Eleventh Circuit also thouht that the statute could apply tosomeone who subjectively believes that an innocuous picture of a child is 5lascivious.52Clause 2v4 of the definition of 5sexually explicit conduct5 is 5lascivious exhibition of the enitals or pubic area of any person.54 'hat is not so. 'he defendant must believethat the picture contains certain material, and that material in fact 2and not merely inhis estimation4 must meet the statutory definition. !here the material at issue is aharmless picture of a child in a bathtub and the defendant, "nowin that material,erroneously believes that it constitutes a 5lascivious display of the enitals,5 thestatute has no application.

""a+% and amici raise other objections, which demonstrate nothin so forcefully asthe tendency of our overbreadth doctrine to summon forth an endless stream of fanciful hypotheticals. ""a+% arues, for example, that a person who offersnonpornoraphic photoraphs of youn irls to a pedophile could be punished under the statute if the pedophile secretly expects that the pictures will contain childpornoraphy. Brief for =espondent #?1$(. 'hat hypothetical does not implicate thestatute, because the offeror does not hold the belief or intend the recipient to believe

that the material is child pornoraphy.

Amici contend that some advertisements for mainstream >ollywood movies thatdepict underae characters havin sex violate the statute. Brief for :ree -peechCoalition et al. as Amici Curiae ?1#;. !e thin" it implausible that a reputabledistributor of >ollywood movies, such as Amaon.com, believes that one of thesefilms contains actual children enain in actual or simulated sex on cameraL andeven more implausible that Amaon.com would intend to ma"e its customers believesuch a thin. 'he averae person understands that sex scenes in mainstream moviesuse nonchild actors, depict sexual activity in a way that would not rise to the explicitlevel necessary under the statute, or, in most cases, both.

'here was raised at oral arument the 8uestion whether turnin child pornoraphyover to the police miht not count as 5present@in5 the material. -ee 'r. of )ral Ar. ?1

##. An interpretation of 5presents5 that would include turnin material over to the

authorities would of course be self1defeatin in a statute that loo"s to the prosecutionof people who deal in child pornoraphy. And it would effectively nullify R $$+$A2d4,which provides an affirmative defense to the possession ban if a defendant promptly

attempt to ac8uire what they believe to be national1security documents, but which areactually fa"esS 'o as" is to answer. 'here is no :irst Amendment exception from theeneral principle of criminal law that a person attemptin to commit a crime need not

















































delivers child pornoraphy to a law1enforcement aency. 2'he possession offensewould simply be replaced by a panderin offense for deliverin the material to law1enforcement officers.4 In any event, the verb 5present5 alon with 5distribute5 and5advertise,5 as well as 5ive,5 5lend,5 5deliver,5 and 5transfer5was used in thedefinition of 5promote5 in 5er+er. -ee &+; .S., at 9+#, #($ -.Ct. %%&; 28uotin N.P.enal 3aw Ann. R $7%.#+ 20cFinney #?;(44. <espite that inclusion, we had nodifficulty concludin that the New Por" statute survived facial challene. And in theperiod since 5er+er# despite similar statutory definitions in other state statutes, see,

e.g.# Alas"a -tat. R ##.7#.#$+2d4 2$((74, <el.Code Ann., 'itle ##, R ##(?2+4 2$((94, weare aware of no prosecution for ivin child pornoraphy to the police. !e can hardlysay, therefore, that there is a 5realistic daner5 that R $$+$A2a42%42B4 will deter suchactivity. )e* or% State Clu+ Assn.# 6nc. v. City of )e* or%# &;9 .S. #, ##, #(; -.Ct.$$$+, #(# 3.Ed.$d # 2#?;;4 2citin 3hornhill v. Ala+ama# %#( .S. ;;, ?91?;, 7( -.Ct.9%7, ;& 3.Ed. #(?% 2#?&(44.

It was also suested at oral arument that the statute miht cover documentaryfootae of atrocities bein committed in forein countries, such as soldiers rapinyoun children. -ee 'r. of )ral Ar. +19. erhaps so, if the material rises to the hihlevel of explicitness that we have held is re8uired. 'hat sort of documentary footaecould of course be the subject of an as1applied challene. 'he courts presumablywould weih the educational interest in the dissemination of information about theatrocities aainst the overnmentJs interest in preventin the distribution of materialsthat constitute 5a permanent record5 of the childrenJs deradation whosedissemination increases 5the harm to the child.5 5er+er# &+; .S., at 9+?, #($ -.Ct.%%&;. Assumin that the constitutional balance would have to be struc" in favor of thedocumentary, the existence of that exception would not establish that the statute issu+stantially overbroad. 'he 5mere fact that one can conceive of some impermissibleapplications of a statute is not sufficient to render it susceptible to an overbreadthchallene.5 Mem+ers of City Council of Los Angeles v. 3ax"ayers for 9incent# &77.S. 9;?, ;((, #(& -.Ct. $##;, ;( 3.Ed.$d 99$ 2#?;&4. In the vast majority of itsapplications, this statute raises no constitutional problems whatever.

:inally, the dissent accuses u% of silently overrulin our prior decisions in 5er+er and5ree S"eech Coalition. -ee "ost# at #;+&. Accordin to the dissent, Conress hasmade an end1run around the :irst AmendmentJs protection of virtual child

pornoraphy by prohibitin proposals to transact in such imaes rather thanprohibitin the imaes themselves. But an offer to provide or re8uest to receive virtualchild pornoraphy is not prohibited by the statute. A crime is committed only when thespea"er believes or intends the listener to believe that the subject of the proposedtransaction depicts real children. It is simply not true that this means 5a protectedcateory of expression @will inevitably be suppressed,5 "ost# at #;++. -imulated childpornoraphy will be as available as ever, so lon as it is offered and souht as such#and not as real child pornoraphy. 'he dissent would re8uire an exception from thestatuteJs prohibition when, unbe"nownst to one or both of the parties to the proposal,the completed transaction would not have been unlawful because it is 2we have said4protected by the :irst Amendment. !e fail to see what :irst Amendment interestwould be served by drawin a distinction between two defendants who attempt toac8uire contraband, one of whom happens to be mista"en about the contrabandnature of what he would ac8uire. Is Conress forbidden from punishin those who

be exonerated because he has a mista"en view of the facts.

III

As an alternative round for facial invalidation, the Eleventh Circuit held that R$$+$A2a42%42B4 is void for vaueness. aueness doctrine is an outrowth not of the:irst Amendment, but of the <ue rocess Clause of the :ifth Amendment. Aconviction fails to comport with due process if the statute under which it is obtained

fails to provide a person of ordinary intellience fair notice of what is prohibited, or isso standardless that it authories or encouraes seriously discriminatoryenforcement. 7ill v. Colorado# +%( .S. 9(%, 9%$, #$( -.Ct. $&;(, #&9 3.Ed.$d +?92$(((4L see also ,rayned v. City of /oc%ford# &(; .S. #(&, #(;1#(?, ?$ -.Ct. $$?&,%% 3.Ed.$d $$$ 2#?9$4. Althouh ordinarily 5@a plaintiff who enaes in some conductthat is clearly proscribed cannot complain of the vaueness of the law as applied tothe conduct of others,5 we have relaxed that re8uirement in the :irst Amendmentcontext, permittin plaintiffs to arue that a statute is overbroad because it is unclear whether it reulates a substantial amount of protected speech. 7offman Estates v.5li"side# 7offman Estates# 6nc.# &++ .S. &;?, &?&1&?+, and nn. 7 and 9, #($ -.Ct.##;7, 9# 3.Ed.$d %7$ 2#?;$4L see also /eno v. American Civil Li+erties 0nion# +$#.S. ;&&, ;9(1;9&, ##9 -.Ct. $%$?, #%; 3.Ed.$d ;9& 2#??94 . But 5perfect clarity andprecise uidance have never been re8uired even of reulations that restrictexpressive activity.5 Ward v. /oc% Against /acism# &?# .S. 9;#, 9?&, #(? -.Ct.

$9&7, #(+ 3.Ed.$d 77# 2#?;?4.

'he Eleventh Circuit believed that the phrases 5[in a manner that reflects the beliefJ5and 5[in a manner ... that is intended to cause another to believeJ5 are 5so vaue andstandardless as to what may not be said that the public is left with no objectivemeasure to which behavior can be conformed.5 &&& :.%d, at #%(7. 'he court ave twoexamples. :irst, an email claimin to contain photoraph attachments and includin amessae that says 5[little *anie in the bathhubba, hubbaYJ5 6+id. Accordin to theEleventh Circuit, iven that the statute does not re8uire the actual existence of illealmaterial, the /overnment would have 5virtually unbounded discretion5 to deem such astatement in violation of the 5[reflects the beliefJ5 pron. 6+id. 'he courtJs secondexample was an e1mail entitled 5[/ood pics of "ids in bedJ5 with a photoraphattachment of toddlers in pajamas asleep in their beds. 6+id. 'he court describedthree hypothetical senders a proud randparent, a 5chronic forwarder of cute photoswith racy tonue1in1chee" subject lines,5 and a child molester who see"s to trade thephotoraphs for more raphic material. 6d.# at #%(71#%(9. Accordin to the EleventhCircuit, because the 5manner5 in which the photoraphs are sent is the same in eachcase, and because the identity of the sender and the content of the photoraphs areirrelevant under the statute, all three senders could aruably be prosecuted for panderin. 6d.# at #%(9.

!e thin" that neither of these hypotheticals, without further facts, would enable areasonable juror to find, beyond a reasonable doubt, that the spea"er believed andspo"e in a manner that reflected the belief, or spo"e in a manner intended to causeanother to believe, that the pictures displayed actual children enaed in 5sexuallyexplicit conduct5 as defined in the Act. 'he prosecutions would be thrown out at thethreshold.

But the Eleventh CircuitJs error is more fundamental than merely its selection of unproblematic hypotheticals. Its basic mista"e lies in the belief that the mere fact thatclose cases can be envisioned renders a statute vaue. 'hat is not so. Close cases

"nowlede, belief and intentthe state of menJs mindshavin before them no morethan evidence of their words and conduct, from which, in ordinary human experience,mental condition may be inferred.5 American Communications Assn. v. -ouds# %%?


















































































can be imained under virtually any statute. 'he problem that poses is addressed, notby the doctrine of vaueness, but by the re8uirement of proof beyond a reasonabledoubt. -ee 6n re Winshi"# %?9 .S. %+;, %7%, ?( -.Ct. #(7;, $+ 3.Ed.$d %7; 2#?9(4.

!hat renders a statute vaue is not the possibility that it will sometimes be difficult todetermine whether the incriminatin fact it establishes has been provedL but rather the indeterminacy of precisely what that fact is. 'hus, we have struc" down statutesthat tied criminal culpability to whether the defendantJs conduct was 5annoyin5 or

5indecent5wholly subjective judments without statutory definitions, narrowincontext, or settled leal meanins. -ee Coates v. Cincinnati# &($ .S. 7##, 7#&, ?#-.Ct. #7;7, $? 3.Ed.$d $#& 2#?9#4L /eno# su"ra# at ;9(1;9#, and n. %+, ##9 -.Ct.$%$?.

'here is no such indeterminacy here. 'he statute re8uires that the defendant hold,and ma"e a statement that reflects, the belief that the material is child pornoraphyLor that he communicate in a manner intended to cause another so to believe. 'hoseare clear 8uestions of fact. !hether someone held a belief or had an intent is a true1or1false determination, not a subjective judment such as whether conduct is5annoyin5 or 5indecent.5 -imilarly true or false is the determination whether aparticular formulation reflects a belief that material or purported material is childpornoraphy. 'o be sure, it may be difficult in some cases to determine whether theseclear re8uirements have been met. 5But courts and juries every day pass upon

.S. %;$, &##, 9( -.Ct. 79&, ?& 3.Ed. ?$+ 2#?+(4 2citin $ *. !imore, Evidence RR$&&, $+7 et se;. 2%d ed.#?&(44. And they similarly pass every day upon thereasonable import of a defendantJs statementswhether, for example, they fairlyconvey a false representation, see, e.g.# #; .-.C. R #7$# 2criminaliin perjury4, or athreat of physical injury, see, e.g.# R ##+2a42#4 2criminaliin threats to assault federalofficials4. 'hus, the Eleventh CircuitJs contention that R $$+$A2a42%42B4 ives lawenforcement officials 5virtually unfettered discretion5 has no merit. No more here thanin the case of laws aainst fraud, conspiracy, or solicitation.

J J J

Child pornoraphy harms and debases the most defenseless of our citiens. Both the-tate and :ederal /overnments have souht to suppress it for many years, only tofind it proliferatin throuh the new medium of the Internet. 'his Court heldunconstitutional ConressJs previous attempt to meet this new threat, and Conressresponded with a carefully crafted attempt to eliminate the :irst Amendment problemswe identified. As far as the provision at issue in this case is concerned, that effort wassuccessful.

'he judment of the Eleventh Circuit is reversed.

6t is so ordered.























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