CONSTITUTIONAL LAW II

A Quick Guide to Tests and Standards

A. Free Speech
TEST DEFINITION/REQUISITES/ELEMENTS APPLICATION
There must be a clear and present danger of an evil
substantive enough to warrant state interference. It is a
Clear and Regime for free speech
question of proximity and degree.
present danger
test cases in the Philippines
Success of the obstruction is unnecessary; the tendency
and intent of the act are sufficient.
State should not forbid advocacy of the use of force or of
law violation, except if advocacy is directed to inciting or
producing imminent lawless action, and is likely to incite
Brandenburg
and produce such action.
test (Imminent
Advocacy speech
lawless action
Requisites
or IIL)
1. Incitement
2. Imminence
3. Likelihood
B. Content-based or content-neutral restrictions
1. Regulation is within the constitutional power of
the Government;
2. It furthers an important or substantial
governmental interest;
3. The government interest is unrelated to the
suppression of free expression; and Determination of whether
O’Brien test 4. The incidental restriction on alleged First statute is content-based or
Amendment freedoms is no greater than is content-neutral
essential to the furtherance of that interest
If the regulation fails the third prong, it is a content-
based regulation, and therefore restricts a fundamental
right. Strict scrutiny must thus be used. If all four
requisites are met, it is a content-neutral regulation.
C. Standards of judicial review
Requisites:
1. Government must allege a state interest.
2. Classification must bear a reasonable relation to Classification and
Rational basis
the purpose. differentiation statutes
3. There is a strong presumption of validity in favor
of the classification.
Applies to gender &
Requisites:
legitimacy cases, content-
1. Government must show the classification serves
Immediate neutral prohibitions, and
an important state interest.
scrutiny substantive due process
2. Classification must be substantially related to
cases (see White Light v. City
the interest alleged.
of Manila)
1. Government must allege a compelling interest.
2. The regulation must be narrowly tailored to the When regulation infringes
Strict scrutiny interest. on a fundamental right (i.e.
3. It must be the least restrictive means to achieve speech, religion, privacy)
such interest.
D. Libel
Malice is present when:
When statement is made
1. The author had knowledge of the statement’s
Actual malice about a public official,
falsity; or
rule public figure, or a matter of
2. The author recklessly disregarded whether or not
public interest
the statement was false.

Española A2016 Prof. Florin Hilbay

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TEST DEFINITION/REQUISITES/ELEMENTS APPLICATION
E. Sexually explicit expression
1. Authorities must apply for a search warrant.
2. They must convince the judge that the materials
to be seized are obscene, and pose a clear and
present danger.
3. The judge must determine whether or not the
materials are obscene, to be resolved on a case-
When authorities seek to
to-case basis and through the judge’s discretion.
Pita procedure seize materials for being
4. If, in the court’s opinion, probable cause exists, it
obscene
may issue the search warrant.
5. Authorities may sue under Art. 201 of the Revised
Penal Code.
6. Any conviction is subject to appeal. The appellate
court may assess whether or not the properties
seized are indeed obscene.
Material is obscene when:
1. The average person, applying contemporary
community standards would find that the work,
taken as a whole, appeals to prurient interest;
Miller test
2. The work depicts or describes in a patently Obscene materials
(Obscenity test)
offensive way, sexual conduct specifically defined
by the applicable state law;
3. The work, taken as a whole, lacks serious,
literary, artistic, political, or scientific value.
F. Kinds of constitutional challenge
The law is assailed on its face, meaning that petitioners
Facial seek to declare that it is void in its entirety and in Usually paired with a
challenge every application—even for parties not yet before the challenge for overbreadth
court.
As applied The law is assailed on the basis of its application to a When some applications of
challenge person’s specific actions. the law can still be valid
A law is vague when it lacks comprehensible standards,
such that men of common intelligence must necessarily
guess as to its meaning and differ as to its application.
Void for
vagueness A vague law is void and unconstitutional because:
doctrine 1. It violates due process for failure to accord
persons fair notice of the conduct to avoid. Generally, free speech cases
2. Law enforcers have unbridled discretion in
carrying out its provisions.
A law is vague when, in attempting to restrict
Overbreadth unprotected behavior, it also infringes upon protected
doctrine freedoms. The basis is the unnecessary broadness of the
law.
G. Religion cases
If yes to all the questions below, then the statute is
constitutional:
1. Is the belief sincere?
2. Has the right to religious freedom been
burdened?
3. The compelling state interest test:
Sherbert test Free exercise cases
a. Does the government have an interest
compelling enough to override this belief and
regulate this freedom?
b. Is its means in pursuing the interest the least
restrictive and burdensome on respondent’s
freedom?
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TEST DEFINITION/REQUISITES/ELEMENTS APPLICATION
If yes to all the questions below, then the statute is
constitutional:
1. Does the statute have a secular legislative
purpose?
Lemon test Non-establishment cases
2. Does its primary effect neither advance nor
inhibit religion?
3. Does the statute not foster an excessive
entanglement with religion?
Standards of state-religion relationship (via J. Puno in Estrada v. Escritor, 2003)
Believes that the “wall of separation” is meant to protect
the state from the church, and that the Religion Clauses
are an absolute barrier to the formal
Strict
interdependence of religion and state. Thus religious
separation
institutions cannot receive aid, whether direct or indirect,
and the state cannot adjust its secular programs to ease Usually employed in
the burdens it imposes on the faithful. American jurisprudence
A tamer version of strict separation; requires the state to
be neutral towards both believers and non-believers,
Strict
instead of being adversarial. It is not hostile to religion,
neutrality
but it is strict in holding that religion cannot be a
basis to classify for purposes of governmental action.
Gives room for accommodating religion, holding that the
wall is instead meant to protect the church from the state.
It allows interaction between the church and state,
Benevolent Relied on in Philippine
but is strict re: state action, which would threaten
neutrality jurisprudence
the integrity of religious commitment. In Estrada v.
Escritor, it was held that this was the intent of the
framers of our Constitution.
H. Due process
1. Accused has the right to a hearing, which
includes the right of the party interested or
affected to present his own case and submit
evidence in support thereof.
2. Party must be given an opportunity to present
his case and adduce evidence tending to
establish the rights he asserts. The tribunal
must also consider the evidence presented.
3. The duty to deliberate does not impose the
obligation to decide correctly, but it imposes upon
the tribunal the duty to show that it has
something to support its decision. A decision
with absolutely nothing to support it is a nullity.
4. Evidence to support the finding/conclusion
Rules of due process in
Ang Tibay rules must be substantial.
administrative proceedings
5. The decision must be rendered on the
evidence presented at the hearing, or at least
contained in the record and disclosed to the
parties affected.
6. The tribunal or any of its judges must act on
its or his own independent consideration of the
law and facts of the controversy, and not simply
accept a subordinate’s views in arriving at a
decision.

In all controversial questions, the tribunal must render

its decision in such a manner that the parties to the
proceeding can know the various issues involved, and the
reasons for the decisions rendered.
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TEST DEFINITION/REQUISITES/ELEMENTS APPLICATION
Requisites:
1. Law shall be prescribed in harmony with the
general powers of the legislative department of
Principles of the Government.
substantive due 2. The law shall be reasonable in its operation.
process 3. It shall be enforced according to the regular
methods of procedure prescribed.
It shall be applicable alike to all the citizens of the state
or to all of a class.
The statute restraining contracts must:
1. Have a state obligation that is reasonable and
necessary to serve an important public purpose;
Contracts 2. Be necessary; Statutes thought to impair
clause 3. Be the only alternative; the freedom to contract
4. Meet the purpose of the law;
5. Be essential to the achievement of an important
state purpose.
An ordinance, to be a valid exercise of police power,
must:
1. Not contravene the Constitution or any statute;
Validity of 2. Not be unfair or oppressive;
Ordinances, of course 
ordinances 3. Not be partial or discriminatory;
4. Not prohibit but may regulate trade;
5. Be general and consistent with public policy;
6. Be reasonable.
I. Right of privacy
1. First trimester of pregnancy—Woman is free to
abort, according to her right before viability
2. End of first trimester—Compelling point, or point
at which state interests begins to override Abortion cases from Roe v.
Artificial woman’s right Wade, until the
trimester 3. Second trimester—State and woman compete abandonment of the regime
regime over the choice of whether to continue or in Planned Parenthood v.
terminate the pregnancy Casey
4. Start of third trimester—Point of viability
5. Third trimester—Fetus already viable, abortion
must only be done to save the woman's life
Applied in Planned
Undue burden A statute is invalid if it places a substantial obstacle or Parenthood, to weigh
standard undue burden upon the person. woman’s right to decide vs.
state interests
J. Equal protection
Applied in the PH for equal
For a classification to be said to apply equally, it must:
protection cases. US
1. Rest on substantial distinctions;
jurisprudence uses higher
Four-prong test 2. Be germane to the purposes of the law;
standards, e.g. intermediate
3. Not be limited to existing conditions only;
scrutiny for classifications
4. Apply equally to all members of the same class.
based on gender
K. Criminal due process
The warrant must:
Requisites of a
1. Be issued upon probable cause;
valid warrant
2. Particularly describe the things to be seized.
Whether a reasonably prudent man, given the
circumstances, would be warranted in believing that his
Stop and frisk safety or that of others is in danger. A police officer thus Police frisks, as applied in
doctrine has a right to stop a citizen on the street and pat him for Terry v. Ohio
a weapon, in the interest of the police officer’s own safety,
and that of others.
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TEST DEFINITION/REQUISITES/ELEMENTS APPLICATION
Prior to any questioning while in custodial investigation,
the person arrested or detained must be warned of the
following:
1. He has a right to remain silent, and anything
he says can be used against him in a court of
law.
Miranda
2. He has the right to counsel, and if he cannot
warnings
afford an attorney, one will be appointed for
him prior to questioning, if he so desires.
After such warnings, the individual may waive the
aforementioned rights. Without these warnings, however,
any confession obtained from the accused is
inadmissible.
In addition to the Miranda rights, the Court in the case of
Mahinay stated that a person arrested, detained or
invited under custodial investigation must be informed: During custodial
1. In a language known to and understood by him investigation, which begins
of the reason for his arrest, and must be shown once the accused is
the warrant of arrest. Every other warning, subjected to police custody,
information or communication must be in a or is deprived of his freedom
language known to and understood by him. of action in any significant
2. That, at any time, he has the right to way
communicate or confer by the most expedient
means (telephone, etc.) with his lawyer, any
Additional member of his immediate family or any medical
rights doctor, priest or minister chosen by him or by his
counsel or by any member of his immediate
family;
3. That he has a right to be visited by or confer
with accredited national or international
NGOs;
4. That he has a right to waive any of the said
rights provided that he does so voluntarily and
intelligently;
5. That any waiver of the right to a lawyer must be
done in writing and in the presence of counsel;
otherwise, the waiver is void.

References:
- A2015 Consti 2 Finals Reviewer
- B2015 Consti 2 Finals Reviewer
- A2016 Consti 2 Digests