CHAPTER 1: CONSTITUTIONAL ISSUES

Constitution - A supreme law of the land where all other laws must conform- It is a municipal law that is only bound to its land- covers the following topics

Power of the State Right of Individuals Defines what the state is:

Territory People bound by Sovereignty Government

- it finds a balance between Power of the State and Right of Individuals

Inherent Power of the State1. Police Power – power to regulate with no

compensation for general welfare, health or safety2. Eminent Domain – power to take away private

property for public use upon payment of just compensation

3. Taxation – it is the “life blood” of the government* Just Compensation can be based on:

Assessed value Zonal Value Fair Market Value (FMV)

ARTICLE XVI: General ProvisionsThe ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives, or associations, wholly-owned and managed by such citizens. (page 1)

MAIN IDEA: The Legal Environment of Mass Media

Mass Media and Advertising is Differenta. Mass Media is limited to TVC, PRINT, and

RADIO Plays a critical role in nation-building Ownership and management is 100%

Filipino It is a gate keeper of what is

communicated to the masses. Not all information should pass through those gates.

The allegiance and loyalty to country is the primary reason for Filipinization Policies.Mass media plays a critical role in nation building since it is a source of news, information, ideas, and ideals.Filipinization of ideas projected through mass media is ensured when left in the hands of Filipino.

SEC 11 – The congress shall regulate or prohibit monopolies in commercial mass media when public interest so requires.

No Combination in restrain of trade or unfair competition therein shall be allowed. (page 2)

No single company has controlling interest in two traditional forms of tri-media comprising of TVC, PRINT, and RADIO.

Ex. ABS-CBN owns television and radio but has no direct interest in print such as a newspaper company

There is a conscious effort to maintain competitionThe sense of balance in the market place can only be achieved under a regime of healthy and fair competition.

SEC 11 – The advertising industry is impressed with public interest, and shall be regulated by the law for the protection of consumers and the promotion of general welfare.

Advertising is a property in the form of speech that uses mass media to communicate a product / advocacy / idea for the intent to sell and persuade a target audience

Advertising is a form of speech this it is PROTECTED (Commercial Speech)

Advertising has the intent to sell rather than to express thus it is regulated. (Police Power)

Advertising may be regulated through POLICE POWER or EMINENT DOMAIN.

SEC 11 – Only Filipino citizen or corporations or associations at least seventy per centum (70%) of capital of which is owned by such citizen shall be allowed to engage in advertising industry. (page 2)

Advertising is less restrictive in terms of ownership.

Ownership: 70/30 profit sharing70% - Filipino30% - Foreigners

To protect their interest, foreigners are allowed ownership over companies created to sell their product (limited ownership)

Created opportunities to transfer technology from foreign shores to this country where innovation on advertising are introduced.

SEC 11 – The participation of foreign investors in the governing body of entities in such industry shall be limited to their proportionate share in capital thereof, and shall all the executive and managing officers of such entities must be citizens of the Philippines. (page 2)

With respect to management, foreigners are prohibited from taking an executive or managing officer positiona. Mass Media Management = 100% Filipinob. Advertising Management = 100% Filipino

Executive and managing positions are placed entirely in the hands of Filipinos to assure that content and appeal of the advertisement is strictly Filipino.

Standards have to be measured according to the national or Filipino psyche.

ARTICLE III – Bill of Rights (Sec. 1 and 9)Sec 1 – No person shall be deprived of life, liberty, or property without due process nor shall any person be denied equal protection of the law. (page 6)

Talks about POLICE POWERThe State can exercise police power (to regulated, with no just compensation) BUT due process must be given

CASE: Churchill and Trait vs. Rafferty (BIR)STORY: Churchill placed a billboard that covers the view of nature and compels attention because of its location. Churchill's billboard is placed in his private party. The government characterized it as offensive to the sight

ISSUE: Whether the billboard may be removed without just compensation to the owners

RULING: The billboard was removed without just compensation through police power although it is a private property the government's main concern is the general welfare of the people and the billboard was a distraction and obstructive.

Equal ProtectionGeneral Rule: Equal to everyoneExemptions:

a. More protection over the less fortunateb. Retail Trade is only for Filipinosc. Law only applies to one (1) class

Ex. Only Filipinos can own land 60% must be Filipino

Sec 9 – Private property shall not be taken for public use without just compensation (page 6)

Talks about EMINENT DOMAIN The state has the power to exercise

eminent domain (take away with compensation)

Right to take away/ expropriate is only valid if:i. For public use

ii. There is just compensation

CASE: People vs. FajardoSTORY: Fajardo old house was destroyed due to a typhoon. He owns this parcel of land and on the process of requesting a permit he was denied because the building will destroy the view of the public plaza. He still preceded with the building of his house in his parcel of land. The governments wants the house destroyed because of the ordinance.

ISSUE: Whether the ordinance is valid.RULING: The ordinance is deemed invalid due to the reason that Fajardo's land is useless because of the ordinance passed. He cannot use his private property

therefor the government is exercising the power of eminent domain and should be given just compensation.

ARTICLE III – Freedom of Speech (Sec. 4)Sec 4 – No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people to peacefully assemble and petition the government for redress of grievances. (page 10)

Speech is an encompassing term that includes every possible form of expression (Verbal and Non Verbal)- Freedom of speech cannot be unfretted. Though it is subject to regulations (usually through police power)- The moment you express through actions, you are responsible.

Two Types of Speech1. Protected

a. Core Speech Non Commercial General Rule: it cannot be

interfered with Underlying motive is to

EXPRESSb. Commercial Speech

General Rule: it can be regulated

Underlying motive is for PROFIT

2. Unprotecteda. Libel

- it must be Public Malicious Imputation of (can be real

or imaginary)i. Crime

ii. Viceiii. Defect

Any act ofi. Omission

ii. Conditioniii. Statusiv. Circumstances

Causes the followingi. Dishonor

ii. Discreditiii. Contempt

Blacken the memory of one who is dead

THE PERSON SHOULD BE IDENTIFIABLE

Anything online is public (even private messages)Only the person who has been caused damaged to can sue.

b. Obscenity It looks at an average

person and apply contemporary standards in

order to judge if the object in question is obscene

Work taken as a while lacks serious literary artistic, political, or scientific value.

National Press Club vs. Comelec- It is not allowed to give free of charge print space or air time for candidates. All candidates should depend on comelec for air time. If candidate is a contributor, columnist, commentator or announcer on board he/she should take a leave of absence during candidacy period.

Telecommunications & Broadcast Attorneys of the Phils Inc. vs. Comelec

Laws Concerned:

1. Comelec time for radio and TV shall be given to the government without just compensation so that they may allocate equally and impartially among the candidates within the area of coverage.

2. Comelec space for print (newspaper/magazines) shall be given to the government with just compensation. Said space is allocated free of charge equally and impartially to the candidates.

*Radio and TV broadcasting companies, which are given franchises, do not own the airwaves and frequencies.

They only transmit broadcast and images and therefore, it is a public party; police power can be exercised, unlike Print, which is a private property and power of eminent domain should be exercised.

Political Advertisement - may take the form of spots, guestings, in TV shows and radio programs, love or taped announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers.

"Election period commences 90 days before the day of election date and 30 days thereafter. Campaign period is variable but within the 90 days before the election date"

"Candidates are only considered candidates during the start of campaign period"

CASE: Adiong vs. Comelec

STORY: Adiong challenge the comelec resolution that it is not allowed to use campaign decals and stickers on mobile units

ISSUE: Where the prohibition as applying to private motor vehicles is a valid regulation

RULING: Adiong was granted to the right to distribute campaign decals and stickers. For her mobile units is a private property and prohibiting it is a depriving them with free speech. People who agree to put the stickers in their mobile units is merely is an expression or a statement.

CASE: Mutuc vs. ComelecSTORY: Comelec issued a ruling that the use of a taped jingle on mobile units equipped with sound systems and loud speakers for campaign purposes is not allowed

ISSUE: Whether the prohibition amen e use of a taped jingle is valid?

RULING: Mutuc was granted the right to express his views as a political candidate because it is hard to repeat his views over and over again in different places that is why it is only appropriate to record it in a jingle or something.

Prohibitions of SpeechGeneral Rule: State cannot exercise Prior Restraint or Subsequent Punishment1. Prior Restraint

Has not yet been expressed Before publication/ dissemination

Exemptionsa. During warb. During rebellionc. Classified Censorship (MTCRB)

This can be reviewed by a higher body.

2. Subsequent Punishment Allowed to do/show but there is

immediate punishment after.Exemptions

a. Dangerous Tendency Rule (a tendency) If speech is expressed = possible

evilb. Clear and Present Danger

If speech is expressed = sure evil Use proximity and degree test

c. Balancing of Interests Individual freedom vs public interestCASE: Soriano vs Laguardia