content-based vs. content-neutral based regulation of the freedom of speech and expression

Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v. Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion only to determine the public places that may be used for the procession or meeting, but not the power to refuse the issuance of a permit for such procession or meeting.235 This court explained that free speech and peaceful assembly are "not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court similarly discussed police power in that the assailed rules carry out the legislative policy that "aims to promote safe transit upon and avoid obstructions on national roads, in the interest and convenience of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions on incidental matters as time, place, and manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must follow which include informing the licensing authority ahead of time as regards the date, public place, and time of the assembly.242 This would afford the public official time to inform applicants if there would be valid objections, provided that the clear and present danger test is the standard used for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit assemblies but simply regulates their time, place, and manner.245 In 2010, this court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza committed grave abuse of discretion when he modified the rally permit by changing the venue from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from the size of its medium.