Libel

Libel: Art. 353. A libel is a public and malicious imputation of a

crime, or of a vice or defect, real or imaginary, or any act,
omission, condition, status or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.

Elements of Defamation:

1. That there must be an imputation of a crime, or of a
vice or defect, real or imaginary, or any act, omission, condition,
status or circumstance.

2. That the imputation must be made publicly.

3. That it must be malicious.

4. That the imputation must be directed at a natural or
juridical person or one who is dead.

5. That the imputation must tend to cause the dishonor,
discredit, or contempt of the person defamed.


1
st
Element: In testing whether the utterance is defamatory
what is important is the meaning that the words in fact
conveyed on the mind of persons of reasonable understanding
discretion and candor taking into consideration the surrounding
circumstances where were known to the hearer or reader.

Where the comments are insincere and intended to ridicule
rather than praise the plaintiff, the publication is libelous. Praise
undeserved is slander in disguise. (Jimenez v Reyes, 27 Phil 52).

2
nd
Element - Publication: It is the communication of the
defamatory matter to some third person or persons. Examples:

1. Delivering the article to the typesetter is
sufficient publication (US v Crane 10 Phil 135)

2. Sending to the wife, a letter defamatory of her
husband. (US v Ubinana 1 Phil 471)

3. Sending a letter in an unsealed envelope
through a messenger. (Lopez v Delgado, 8 Phil 26)
Sending a letter not shown to be sealed is also
publication. (US v Grino 36 Phil 738; People v Silvela,
103 Phil 773)

4. Writing another person about the person
defamed. (Orfanel v People 30 SCRA 819)

3
rd
Element - Malice: The malice or ill-will either must be proved
malice in fact; or may be taken for granted in view of the
grossness of the imputation malice in law. Malice in fact may
be proved by ill-will, hatred or purpose to injure. Malice in law is
presumed from a defamatory imputation.

4
th
Element: Identification of the offended party is required. It
is not sufficient that the offended party recognized himself as
the person attacked or defamed; it must be shown that at least
a third person could identify him as the object of the libelous
publication. Defamatory imputation directed at a class or group
of persons in general language are not actionable by individuals
composing the class or group unless the statements are
sweeping; and it is very probable that even then, no action
would lie where the body is composed of so large a number of
persons that there is room for persons connected with the body
to pursue an up-right and law-abiding course. Blind items can
be actionable if it is clear who is being referred to in the
publication.

Purpose must be to injure the injured party.

5
th
Element: Any imputation will be sufficient if it tends to cause
the dishonor, discredit or contempt of a natural or juridical
person or to blacken the memory of one who is dead.

Dishonor disgrace, shame or ignominy
Discredit loss of credit or reputation; disesteem
Contempt state of being despised

Art. 354. Every defamatory imputation is presumed to be
malicious, even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following cases:

1. A private communication made by any person to
another in the performance of any legal, moral or social duty;
and (This is rebutted by evidence of malice in fact or if there is
no reasonable ground to believe that the charge is true.)

2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature or of any
statement, report or speech delivered in said proceedings or of
any other act performed by public officers in the exercise of
their functions. (Defamatory remarks and comments on the
conduct or acts of public officers which are related to the
discharge of their official duties will not constitute libel if the
defendant proves the truth of the imputation. But any attack
upon the private character of the public officer on matters,
which are not related to the discharge of their official duties,
may constitute libel)

3. Fair commentaries on matters of public interest are
likewise privileged. (Borjal v CA ruling)

To rebut the presumption of malice, it must be shown that:

1. the defamatory imputation is true, in case the law
allows proof of the truth of the imputation;
2. it is published with good intention;
3. there is a justifiable motive for making it.

Two types of privileged communication:

1. Absolute Not actionable even if done in bad faith.
Congress, official communications, pleadings, answers in
hearings.
2. Conditional or qualified - privilege is lost if there is
proof of malice. Privileged would be the two exceptions in Art.
354.

POLICARPIO vs. THE MANILA TIMES

Publication of 2 articles- claimed to be per se defamatory,
libelous and false, and to have exposed her to ridicule,
jeopardized her integrity, good name and business and official
transactions, and caused her grave embarrassment, untold and
extreme moral, mental and physical anguish and incalculable
material, moral, professional and business damages.

NEWS ARTICLE: Policarpio was charged with malversation- had
used Unesco stencils for private and personal purposes and
estafa- fraudulently sought reimbursement of supposed official
expenses in complaints filed with the city fiscal's office by the
Presidential Complaints, and Action Commission today-

Yung chnarge siya ng PCAC is untrue. Plaintiff maintains that the
effect of these false statements was to give the general
impression that the plaintiff was guilty. It had the effect of
conveying the idea that the offenses imputed to her were more
serious than they really were. It presented her in a worse
predicament than that in which she was. In other words, said
article was not a fair and true report of the proceedings therein
alluded to.

Issue: is the paper guilty of libel.

To enjoy immunity, a publication containing derogatory
information must be not only be true, but, also, fair, and it must
be made in good faith and without any comments or remarks.

It goes without saying that newspapers must enjoy a certain
degree of discretion in determining the manner in which a given
event should be presented to the public, and the importance to
be attached thereto as a news item, and that its presentation in
a sensational manner is not per se illegal. Newspaper may
publish news items relative to judicial, legislative or other official
proceedings, which are not of confidential nature, because the
public is entitled to know the truth with respect to such
proceedings, which, being official and non-confidential, are
open to public consumption. But, to enjoy immunity, a
publication containing derogatory information must be not only
true, but, also, fair, and it must be made in good faith and
without any comments or remarks.

Then too, how could defendants claim to have acted with good
intentions or justifiable motive in falsely stating that the
complaints had been filed with the Office of the City Fiscal by
the PCAC? Either they knew the truth about it or they did not
know it. If they did, then the publication would be actually
malicious. If they did not, or if they acted under a
misapprehension of the facts, they were guilty of negligence in
making said statement, for the consequences of which they are
liable solidarily (NB This therefore allows for libel by negligence
which would be a dangerous precedent.)

BORJAL vs. COURT OF APPEALS and WENCESLAO

On Libel and Public Figure Definition
a series of articles written by petitioner Borjal was published on
different dates in his column Jaywalker. The articles dealt with
the alleged anomalous activities of an "organizer of a
conference" without naming or identifying private respondent.
Neither did it refer to the FNCLT as the conference therein
mentioned. Wenceslao sent a letter to The Philippine Star
insisting that he was the "organizer" alluded to in petitioner
Borjal's columns.

Whether or not Borjal is guilty of libel. In order to maintain a
libel suit, it is essential that the victim be identifiable although it
is not necessary that he be named. It is also not sufficient that
the offended party recognized himself as the person attacked or
defamed, but it must be shown that at least a third person could
identify him as the object of the libelous publication.
Regrettably, these requisites have not been complied with in the
case at bar.

The questioned articles written by Borjal do not identify private
respondent Wenceslao as the organizer of the conference. The
letterheads, printout and tentative program of the conference
were devoid of any indication of Wenceslao as organizer.

(NB: A blind item not clearly identifying a person will not result
in libel.)

Significantly, private respondent himself entertained doubt that
he was the person spoken of in Borjal's columns. Tinawagan pa
niya- uncertain. Identification is grossly inadequate when even
the alleged offended party is himself unsure that he was the
object of the verbal attack. It is well to note that the revelation
of the identity of the person alluded to came not from petitioner
Borjal but from private respondent himself when he supplied
the information through his letter to the editor. Had private
respondent not revealed that he was the "organizer" of the
FNCLT referred to in the Borjal articles, the public would have
remained in blissful ignorance of his identity. It is therefore clear
that on the element of identifiability alone the case falls.

ARTICLE 354. Requirement for publicity. Every
defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for making it is
shown, except in the following cases:

1) A private communication made by any person to
another in the performance of any legal, moral or social duty;
and,
2) A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature, or of any
statement, report or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of
their functions.

A privileged communication may be either absolutely privileged
or qualifiedly privileged. Absolutely privileged communications
are those which are not actionable even if the author has acted
in bad faith (debate sa Congress). Upon the other hand,
qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre
belong "private communications" and "fair and true report
without any comments or remarks."

Indisputably, petitioner Borjal's questioned writings are not
within the exceptions of Art. 354 of The Revised Penal Code for,
as correctly observed by the appellate court, they are neither
private communications nor fair and true report without any
comments or remarks. However this does not necessarily mean
that they are not privileged. To be sure, the enumeration under
Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public
interest are likewise privileged. The rule on privileged
communications had its genesis not in the nation's penal code
but in the Bill of Rights of the Constitution guaranteeing
freedom of speech and of the press. Court ruled that
publications which are privileged for reasons of public policy are
protected by the constitutional guaranty of freedom of speech.
This constitutional right cannot be abolished by the mere failure
of the legislature to give it express recognition in the statute
punishing libels.

The concept of privileged communications is implicit in the
freedom of the press. As held in Elizalde v. Gutierrez 21 and
reiterated in Santos v. Court of Appeals 22

To be more specific, no culpability could be imputed to
petitioners for the alleged offending publication without doing
violence to the concept of privileged communications implicit in
the freedom of the press. As was so well put by Justice Malcolm
in Bustos: 'Public policy, the welfare of society, and the orderly
administration of government have demanded protection of
public opinion. The inevitable and incontestable result has been
the development and adoption of the doctrine of privilege.'

The doctrine formulated in these two (2) cases resonates the
rule that privileged communications must, sui generis, be
protective of public opinion. It is therefore clear that the
restrictive interpretation vested by the Court of Appeals on the
penal provision exempting from liability only private
communications and fair and true report without comments or
remarks defeats, rather than promotes, the objective of the rule
on privileged communications, sadly contriving as it does, to
suppress the healthy efflorescence of public debate and opinion
as shining linchpins of truly democratic societies.

To reiterate, fair commentaries on matters of public interest are
privileged and constitute a valid defense in an action for libel or
slander. The doctrine of fair comment means that while in
general every discreditable imputation publicly made is deemed
false, because every man is presumed innocent until his guilt is
judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is
directed against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable
imputation to a public official may be actionable, it must either
be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based
on established facts, then it is immaterial that the opinion
happens to be mistaken, as long as it might reasonably be
inferred from the facts.

Kahit na sabihin hindi siya public figure, it does not necessarily
follow that he could not validly be the subject of a public
comment even if he was not a public official/figure, for he could
be, as long as he was involved in a public issue. If a matter is a
subject of public or general interest, it cannot suddenly become
less so merely because a private individual is involved or
because in some sense the individual did not voluntarily choose
to become involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the
participant's prior anonymity or notoriety. There is no denying
that the questioned articles dealt with matters of public
interest.

ALONZO vs. COURT OF APPEALS and Angeles

Alonzo conducted inspections sa medical clinic. Sabi niya sa
report: violations + husband is a judge (untouchable)

Libel is defined in Article 353 of the Revised Penal Code. For an
imputation then to be libelous, the following requisites must
concur: "(a) it must be defamatory; (b) it must be malicious; (c)
it must be given publicity; and (d) the victim must be
identifiable."

Her authority to conduct the inspection and to submit the
corresponding report was not questioned by the private
respondents. Her questioned report was a qualified privileged
communication under the first paragraph of Article 354 of the
Revised Penal Code. There can then be no doubt that the
petitioner made her report in the exercise of her official duty or
function.

There was, in law, no publication of the questioned report. The
rule is settled that a communication made by a public officer in
the discharge of his official duties to another or to a body of
officers having a duty to perform with respect to the subject
matter of the communication does not amount to a publication
within the meaning of the law on defamation. Sila mismo
nagcause ng communication of the libelous matter to a third
person nung inentrust nila kay Balasabas para bigay sa lawyer
nila eh.

LEDESMA vs. COURT OF APPEALS

Ledesma sent a letter addressed to Cabral, Director of Philippine
Heart Center and furnished the same to other officers of the
said hospital. Inargue that the said letter contained slanderous
and defamatory remarks against Torres. Ledesma asked for his
professional fees- no equal distribution of labor + kulang
amount nung kanya.

Pero ang sabi the subject letter was privileged in nature
In every case for libel, the following requisites must concur:

(a) it must be defamatory;
(b) it must be malicious;
(c) it must be given publicity; and
(d) the victim must be identifiable."

When a public officer, in the discharge of his or her official
duties, sends a communication to another officer or to a body of
officers, who have a duty to perform with respect to the subject
matter of the communication, such communication does not
amount to publication within the meaning of the law on
defamation. Publication in libel means making the defamatory
matter, after it has been written, known to someone other than
the person to whom it has been written. The reason for such
rule is that "a communication of the defamatory matter to the
person defamed cannot injure his reputation though it may
wound his self-esteem. A man's reputation is not the good
opinion he has of himself, but the estimation in which others
hold him." In this case, petitioner submitted the letter to the
director of said hospital; she did not disseminate the letter and
its contents to third persons. Hence, there was no "publicity"
and the matter is clearly covered by paragraph 1 of Article 354
of the Penal Code.

MERCADO, petitioner, vs. COURT OF FIRST INSTANCE OF RIZAL

Sabi niya Virginia was constituting enrichment thru corrupt
practices through a telegram which was addressed to the DPWH
Secretary purportedly in line with Marcos' appeal to the public
to give information on undesirable employees in the
government service. Privileged communication daw.

Respondents- absence of any privilege, there being malice and
bad faith, petitioner having been motivated by vengeance and
ill-will as established by his previous conduct viz a viz the private
respondent: the filing of several complaints, both administrative
and criminal aimed to malign her good character and reputation
which were subsequently dismissed or closed for lack of merit
and/or insufficiency of evidence.

The Supreme Court held that qualified privilege communication
may be lost by proof of malice, that the prosecution should be
given the opportunity of proving malice in view of petitioner's
conduct towards private respondent which casts doubt on his
good faith.

Whether or not this is a case of privilege communication.

A libel prosecution must survive the test of whether or not the
offending publication is within the guarantees of free speech
and free press. A communication made bona fide upon any
subject matter in which the party communicating has an
interest, or in reference to which he has a duty, is privileged, if
made to a person having a corresponding interest or duty,
although it contained incriminatory master which without this
privilege would be slanderous and actionable

A pertinent illustration of the application of qualified privilege is
"a complaint made in good faith and without malice in regard to
the character or conduct of a public official when addressed to
an officer or a board having some interest or duty in the matter.
Even when the statements are found to be false, if there is
probable cause for belief in their truthfulness and the charge is
made in good faith, the mantle of privilege may still cover the
mistake of the individual. But the statements must be made
under an honest sense of duty; a self-seeking motive is
destructive. Personal injury is not necessary. All persons have an
interest in the pure and efficient administration of justice and of
public affairs. The duty under which a party is privileged is
sufficient if it is social or moral in its nature and this person in
good faith believes he is acting in pursuance thereof although in
fact he is mistaken. The privilege is not defeated by the mere
fact that the communication is made in intemperate terms.

A further element of the law of privilege concerns the person to
whom the complaint should be made. The rule is that if a party
applies to the wrong person through some natural and honest
mistake as to the respective functions of various officials such
unintentional error will not take the case out of the privilege.

What casts doubt on the good faith of petitioner is a summary
of his conduct. The tenacity with which petitioner had pursued a
course of conduct on its face would seem to indicate that doubt
could reasonably be entertained as to the bona fides of
petitioner. The prosecution should be given the opportunity
then of proving malice.

GUTIERREZ vs. ABILA, CLEMENTE and FRANCISCO

Whether or not this is privileged communication.

For reasons of public policy, utterances made in the course of
juridical proceedings, including all kinds of pleadings, petitions
and motions are absolutely privileged when pertinent and
relevant to the subject under inquiry, however false or malicious
such utterances may be.The requirement of materiality and
relevancy is imposed so that the protection given to individuals
in the interest of an efficient administration of justice may not
be abused as a cloak from beneath which private malice may be
gratified.

Repeated litigations between the same parties might indeed be
tiresome, even nettlesome, but this alone is not sufficient cause
for calling another "dirty-minded," and of a "limited mind,"
"twisted mind" or to characterize his act as a "devise of
wickedness as earmarks of plaintiff's traits.'' It is noted that far
from being isolated statements, these slanderous matters
pervade the entire dimension of the defendants' answer, with
almost every paragraph thereof scathing with spiteful
imputations against the plaintiff. These imputations constitute a
grave reflection upon the mental and moral character and
reputation of the plaintiff, and they certainly achieve no purpose
except to gratify the defendants' rancor and ill-will. The
aforementioned personal opinions of the defendants, expressed
in vituperative and intemperate language, are palpably devoid
of any relation whatever to the subject of inquiry and have no
place in a pleading. The defendants' answer is quite complete
and sufficient without the derogatory statements in question,
and their inclusion therein was clearly made solely for the
purpose of giving vent to their ill-feelings against the plaintiff, a
purpose to which the mantle of absolute immunity does not
extend. Besides, the language vehicle does not run short of
expressions which are emphatic but respectful, convincing but
not derogatory, illuminating but not offensive.

MALIT vs. THE PEOPLE OF THE PHILIPPINES
On Libel (Court Proceedings)

Being cross-examined asked if she knew the person who "made"
a certain exhibit. Evading the question, Dr. Macaspac stated that
she did not understand the word "made." Malit: "I doubt how
did you become a doctor."
The Supreme Court held that the utterance made in the course
of a judicial or administrative proceedings belongs to the class of
communications that are absolutely privileged. (considered in
the interest of public welfare that all persons should be allowed
to express their sentiments and speak their minds fully and
fearlessly upon all questions and subjects)

Issue: Whether or not the utterances is privileged
communication. Parties, counsel and witnesses are exempted
from liability in libel or slander cases for words otherwise
defamatory, uttered or published in the course of judicial
proceedings, provided the statements are pertinent or relevant
to the case.

As to the degree of relevancy or pertinency necessary to make
alleged defamatory matter privileged, the courts are inclined
to be liberal. The master to which the privilege does not
extend must be so palpably wanting in relation to the subject
matter of the controversy that no reasonable man can doubt
its irrelevancy and impropriety. It is thus clear that utterances
made in the course of judicial or administrative proceedings
belong to a class of communications that are absolutely
privileged. The privilege is granted in aid and for the advantage
of the administration of justice.

BULLETIN PUBLISHING CORPORATION vs. Mindalano Clan

It is axiomatic in actions for damages for libel that the published
work alleged to contain libelous material must be examined and
viewed as a whole. We have accordingly examined in its entirety
the subject article "A Changing of the Guard" which is in essence
a popular essay on the general nature and character of
Mindanao politics and the recent emergence of a new political
leader in the province of Lanao del Sur. We note firstly that the
essay is not focused on the late Amir Mindalano nor his family.
Save in the excerpts complained about and quoted above, the
name of the Mindalano family or clan is not mentioned or
alluded to in the essay. The identification of Amir Mindalano is
thus merely illustrative or incidental in the course of the
development of the theme of the article. The language utilized
by the article in general and the above excerpts in particular
appears simply declaratory or expository in character, matter-
of-fact and unemotional in tone and tenor. No derogatory or
derisive implications or nuances appear detectable at all,
however closely one may scrutinize the above excerpts. We find
in the quoted excerpts no evidence of malevolent intent either
on the part of the author or the publisher of the article here
involved.

Personal hurt or embarassment or offense, even if real, is not,
however, automatically equivalent to defamation. The law
against defamation protects one's interest in acquiring,
retaining and enjoying a reputation "as good as one's character
and conduct warrant" in the community and it is to community
standards not personal or family standards that a court
must refer in evaluating a publication claimed to be
defamatory.

PHILIPPINE COMMERCIAL & INDUSTRIAL BANK vs.
PHILNABANK EMPLOYEES' ASSOCIATION

Members of the union picketed its premises displaying placards
and signboards containing the following: "PCIB BAD ACCOUNTS
TRANSFERRED TO PNB-NIDC?

SC dismissed the complaint for libel as the offensive words,
uttered in the exercise of the freedom of speech guarantee of
the Constitution, are usually expected in confrontations
between labor and management.

The judiciary, in deciding suits for libel, must ascertain whether
or not the alleged offending words may be embraced by the
guarantees of free speech and free press.

It is a fact of industrial life that in the continuing confrontation
between labor and management, it is far from likely that the
language employed would be both courteous and polite. Such
being the case, there is no affront either to reason or so the
law in a complaint for libel being dismissed.

What appeared in the placard was characterized in the appealed
decision as lacking in "libelous imputation." Another
reinforcement so such a mode of appraising the matter is that
there was a labor controversy resulting in a strike. The labor
union made use of its constitutional right to picket. The
Supreme Court has been committed to the view that peaceful
picketing is part of the freedom of speech guarantee of the
Constitution.
EUGENIO LOPEZ "MANILA, CHRONICLE vs. THE HON. COURT
OF APPEALS
Fidel Cruz: people in the place were living in terror, due to a
series of killings. HOAX pala he merely wanted transportation
home to Manila. Manila Chronicle devoted a pictorial article.
Unfortunately, ibang picture na may same name ung nalagay.
Together with the foregoing correction, petitioners published
the picture of Fidel Cruz; the photographs and the correction
moreover were enclosed by four lines the type used was bolder
than ordinary, and the item was placed in a conspicuous place in
order to call the attention of the readers to such amends being
made.


1. It is on the freedom of the press that petitioners would stake
their case to demonstrate that no action for libel would lie
arising from the publication of the picture. No liability would be
incurred if it could be demonstrated that it comes within all
embracing scope of freedom of the press. Included therein is the
widest latitude of choice as to what items should see the light of
day so long as they are relevant to a matter of public interest,
the insistence on the requirement as to its truth yielding at
times to unavoidable inaccuracies attendant on newspapers and
other publications being subject to the tyranny of deadlines.
Such is the case in a far greater measure in the United States.
According to the standard treatise of Newell on Slander and
Libel: "Publication of a person's photograph in connection with
an article libelous of a third person, is a libel on the person
whose picture is published, where the acts set out in the article
are imputed to such person."

Why libel law has both a criminal
and a civil aspect: "On the one hand, libeling a person results in
depriving him of his good reputation. Since reputation is a thing
of value, truly rather to be chosen than great riches, an
impairment of it is a personal wrong. To redress this personal
wrong money damages are awarded to the injured person. On
the other hand, the publication of defamatory statements tends
strongly to induce breach of the peace by the person defamed,
and hence is of peculiar moment to the state as the guardian of
the public peace.
"There was some suggestion that the defendant published the
portrait by mistake, and without knowledge that it was the
plaintiff's portrait, or was not what it purported to be. But the
fact, if it was one, was no excuse. If the publication was libelous,
the defendant took the risk. As was said of such matters by Lord
Mansfield, 'Whenever a man publishes, he publishes at his peril.'
... The reason is plain. A libel is harmful on its face.
2. There is an impressive recognition in our decisions of the
curtailment to which press freedom would be subjected if an
action for libel were not rigorously scrutinized to remove doubts
as to its being utilized to penalize the exercise of that
constitutional right "The interest of society and the maintenance
of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a
scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may
suffer under a hostile and an unjust accusation: the wound can
be assuaged with the balm of a clear conscience. A public officer
must not to be too thin-skinned with reference to comment
upon his official acts. Only thus can the intelligence and dignity
of the individual be exalted. Of course, criticism does not
authorize defamation. Nevertheless, as an individual is less than
the State, so must expected criticism be born for the common
good." On this aspect of the question which, as answered by
him, would require that a criminal suit for libel should not be
utilized as a means for stifling press freedom, he categorically
declared: "Public policy, the welfare of society, and the orderly
administration of government have demanded protection for
public opinion. The inevitable and incontestable result has been
the development and adoption of the doctrine of privilege."
In another civil action for libel, such a thought is expressed
differently in this wise: "So long as it is done in good faith,
newspapers have the legal right to have and express opinions on
legal questions. To deny them that right would infringe upon the
freedom of the press." In the language of the then Chief Justice
Paras, who penned the opinion: "The Court of Appeals found as
a fact that "there is no evidence in the record to prove that the
publication of the news item under Consideration was prompted
by personal ill will or spite, or that there was intention to do
harm,' and that on the other hand there was 'an honest and
high sense of duty to serve the best interests of the public,
without self-seeking motive and with malice towards none.'
Every citizen of course has the right to enjoy a good name and
reputation, but we do not consider that the respondents, under
the circumstances of this case, had violated said right or abused
the freedom of the press. The newspapers should be given such
leeway and tolerance as to enable them to courageously and
effectively perform their important role in our democracy. In the
preparation of stories, press reporters and edition usually have
to race with their deadlines; and consistently with good faith
and reasonable care, they should not be held to account, to a
point of suppression, for honest mistakes or imperfection in the
choice of words."
"We are required in this case to determine for the first time the
extent to which the constitutional protections for speech and
press limit a State's power to award damages in a libel action
brought by a public official against critics of his official conduct.
In deciding the question now, we are compelled by neither
precedent nor Policy to give any more weight to the epithet
'libel' than we have to other 'mere labels' of state law. ... Like
insurrection, contempt, advocacy of unlawful acts, breach of the
peace, obscenity, solicitation of legal business, and the various
other formulae for the repression of expression that have been
challenged in this Court, libel can claim no talismanic immunity
from constitutional limitations. It must be measured by
standards that satisfy the First Amendment."
For liability to arise then without offending press freedom, there
is this test to meet: "The constitutional guarantees require, we
think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made
with 'actual malice' that is, with knowledge that it was false or
with reckless disregard of whether it was false or not."

The significance of the foregoing line of decisions impressive for
their consistency is quite obvious. No inroads on press freedom
should be allowed in the guise of punitive action visited on what
otherwise could be characterized as libel whether in the form of
printed words or a defamatory imputation resulting from the
publication of respondent's picture with the offensive caption as
in the case here complained of. This is not to deny that the party
responsible invites the institution either of a criminal
prosecution or a civil suit. It must be admitted that what was
done did invite such a dire consequence, considering the value
the law justly places on a man's reputation. This is merely to
underscore the primacy that freedom of the press enjoys. It
ranks rather high in the hierarchy of legal values. If the cases
moan anything at all then, to emphasize what has so clearly
emerged, they call for the utmost care on the part of the
judiciary to assure that in safeguarding the interest of the party
allegedly offended a realistic account of the obligation of a news
media to disseminate information of a public character and to
comment thereon as well as the conditions attendant on the
business of publishing cannot be ignored.
3. It is to the haven thus afforded by such a highly sympathetic
ruling to press freedom that petitioners would seek refuge. The
defamatory matter complained of in the Quisumbing case
appeared in the headline. It was without basis, as shown by the
text of the news item itself. Nonetheless, for the reasons
expressed with vigor and clarity by former Chief Justice Paras,
no liability was deemed incurred by the then publisher of the
Manila Chronicle A newspaper, it is stressed, "should not be
held to account to a point of suppression for honest mistakes or
imperfection in the choice of words." The above ruling, coupled
with the requirement in the New York Times decision of the
United States Supreme Court, would for the writer of this
opinion, furnish a sufficient basis for the success of this appeal.
The Court, however, is not inclined to view matters thus.
Obviously Quisumbing v. Lopez is not squarely in point. Here
there was no pressure of a daily deadline to meet no occasion to
act with haste as the picture of respondent was published in a
weekly magazine. Moreover, there is the added requirement of
reasonable care imposed by such decision which from the facts
here found, appeared not to be satisfied. It cannot be concluded
then that the plea of petitioners is sufficiently persuasive. The
mandate of press freedom is not ignored, but here it does not
speak unequivocally. It is not decisive of the basic issue. By itself,
it does not have a controlling significance. So we hold. This
rectification or clarification does not wipe out the responsibility
arising from the publication of the first article, although it may
and should mitigate it.
Art. 356. Threatening to publish and offer to present such
publication for a compensation. The penalty of arresto mayor
or a fine from 200 to 2,000 pesos, or both, shall be imposed
upon any person who threatens another to publish a libel
concerning him or the parents, spouse, child, or other members
of the family of the latter or upon anyone who shall offer to
prevent the publication of such libel for a compensation or
money consideration.
Acts Punished:
1. By Threatening another to publish a libel
concerning him or his parents, spouse, child or other
member of his family.
2. By Offering to prevent the publication of such
libel for compensation or money consideration.
Blackmail Defined: Blackmail, in its metaphorical sense, may be
defined as any unlawful extortion of money by threats of
accusation or exposure. Two words are expressive of the crime
hush money. (US v Eguia, 38 Phil 857)
Art. 357. Prohibited publication of acts referred to in the course
of official proceedings. The penalty of arresto mayor or a fine
of from 200 to 2,000 pesos, or both, shall be imposed upon any
reporter, editor or manager of a newspaper, daily or magazine,
who shall publish facts connected with the private life of
another and offensive to the honor, virtue and reputation of
said person, even though said publication be made in
connection with or under the pretext that it is necessary in the
narration of any judicial or administrative proceedings wherein
such facts have been mentioned.
Elements:
1. That the offender is a reporter editor or
manager of a newspaper, daily or magazine;
2. That he publishes facts connected with the
private life of another;
3. That such facts are offensive to the honor,
virtue and reputation of said person.
n.b. The prohibition applies even though said
publication be made in connection wit or under the
pretext that it is necessary in the narration of any
judicial or administrative proceedings wherein such
facts have been mentioned.
This is otherwise known as the Gag Law.
This law must be viewed against the jurisprudence laid
out in cases like Borjal Versus CA though. Considering
this, this law is more likely applicable only when the
person involved is not considered a public figure.
Rep Act No. 1477, amending Rep. Act No. 53 Without
prejudice to his liability under the civil and criminal
laws, the publisher, editor, columnist or duly accredited
reporter of any newspaper, magazine or periodical of
general circulation cannot be compelled to reveal the
source of any news report or information appearing in
said publication which was related in confidence to
such publisher, editor or reporter, unless the court of a
House or committee of Congress finds that such
revelation is demanded by the security of the state.
Art. 358. Slander. Oral defamation shall be punished by
arresto mayor in its maximum period to prision correccional in
its minimum period if it is of a serious and insulting nature;
otherwise the penalty shall be arresto menor or a fine not
exceeding 200 pesos.
Slander is oral defamation. Note that oral defamation need not
even be heard by the offended party.
Two kinds:
1. Simple Slander
2. Grave Slander, when it is of a serious and
insulting nature.
Factors that determine gravity The gravity of oral defamation
depends not only (1) upon the expressions used but also (2) on
the personal relations of the accused and the offended party,
and (3) the circumstances surrounding the case. (People v Jaring
CA, 40 OG 3683). Defamatory words constitute either grave or
light slander depending not only upon their sense and
grammatical meaning, judging them separately, but also upon
the special circumstances of the case, antecedents or
relationship between the offended party and the offender,
which might tend to prove the intention of the offender at the
time. (Balite v People, 18 SCRA 280)
The social standing and the position of the offended party are
also taken into consideration. Thus, it was held that the slander
was grave, because the offended party had held previously the
office of Congressman, Governor and Senator and was then a
candidate for Vice-President. (People v Bosier, CA, 53 OG 2202)
Slander committed against a teacher looked up for
exemplariness of character was held to be grave slander.
Examples of grave slander:
1. Words imputing to unchastity to a respectable
married lady and tending to injure the characters of the
daughters.
2. Scurrilous words imputing to the offended
party the crime of estafa. He Has sold the union. He
has swindled, the money. He received bribe money in
the amount of P10,000.00 and another P6,000.00 He
is engaged in racketeering and enriching himself with
the capitalists. He has spent he funds of the union for
his personal use.
Examples of Simple slander:
1. Accusation that offended party has been
successively living with different men, intended to
correct an improper conduct, uttered by a kin of the
accused. (People v Clarin 37 OG 1106)
2. Calling a person a gangster. (Arcand v People
68 Phil 601)
3. Uttering defamatory words in the heat of
anger, with some provocation on the part of the
offended party constitutes only a light felony. (People
v De Modesto, 40 OG Supp. 11, 128)
4. Defamation uttered in political meetings
Common slur expressions does not necessarily result in
defamation.
Art. 359. Slander by deed. The penalty of arresto mayor in its
maximum period to prision correccional in its minimum period
or a fine ranging from 200 to 1,000 pesos shall be imposed upon
any person who shall perform any act not included and
punished in this title, which shall cast dishonor, discredit or
contempt upon another person. If said act is not of a serious
nature, the penalty shall be arresto menor or a fine not
exceeding 200 pesos.

Definition: Slander by deed is a crime against honor, which is
committed by performing any act which casts dishonor, discredit
or contempt upon another person. This involves an act and not
words.

Elements:

1. That the offender performs any act not
included in any other crime against honor.
2. That such act is performed in the presence of
other person or persons;
3. That such act casts dishonor, discredit or
contempt upon the offended party.

Kinds of Slander by Deed:

1. Simple
2. Grave, serious nature (depends on social
standing of the offended party, the circumstances
under which the act was committed, the occasion, etc.,

Examples:

1. Slapping the face of another is slander by deed
if the intention of the accused is to cause shame and
humiliation.

2. Fighting with intention to insult him is slander.

3. Kissing a girl in public and touching her breast
without lewd designs, committed by a rejected suitor
cast dishonor on the girl, was held to be slander by
deed and not acts of lasciviousness. (People v Valencia,
CA-GR No. 4136-R, May 29, 1950)

4. The act of holding a school teacher by the hair
and shaking him violently in the presence of school
children and other teachers, because he had stopped a
boy from pursuing another, is not maltreatment but
slander by deed, because of (1) the public office held by
the offended party and (2) the nature and effects of the
maltreatment inflicted upon him. (People v Velez, GR
No. 41234, Aug. 31, 1934)

Unjust Vexation, Slander by Deed and Acts of Lasciviousness
distinguished:

1. Unjust vexation: Anything that annoys or irritates
another without justification.

2. Slander by Deed: Aside from annoying and irritating
there is publicity and dishonor or contempt.

3. Acts of lasciviousness: Aside from annoying and
irritating there is present the circumstances provided for in Art
335 on rape (use of force or intimidation, deprivation or reason
or rendering the victim unconscious or if victim is under 12 years
old, together with lewd designs.

Art. 200. Grave scandal. The penalties of arresto mayor and
public censure shall be imposed upon any person who shall
offend against decency or good customs by any highly
scandalous conduct not expressly falling within any other article
of this Code.

Elements:

1. That the offender performs an act or acts.
2. That such act or acts be highly scandalous as
offending against decency (propriety of conduct) or
good customs (established usage, social conventions
carried on by tradition and enforced by social
disapproval of any violation thereof).
3. That the highly scandalous conduct is not
expressly falling within any other article of this Code.
4. That the act or acts complained of be
committed in a public place or within the public
knowledge or view (US v Samaniego 16 Phil 663), giving
rise to scandal to persons who have accidentally
witnessed the same.

When the acts are performed in a private house but seen by a
person that is not grave scandal.

How about private sex shows? Is this grave scandal?
How about private rooms in ktv establishments?
Art. 201. Immoral doctrines, obscene publications and
exhibitions and indecent shows. The penalty of prision mayor
or a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:
(1) Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;

How about the children of god cult? What if
they raise the issue of freedom of expression?
Argument in the Devils Advocate movie
regarding religion and the illegal act of killing
the goat.
(2) (a) the authors of obscene literature, published with
their knowledge in any form; the editors publishing
such literature; and the owners/operators of the
establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any
other place, exhibit, indecent or immoral plays, scenes,
acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which
(1) glorify criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for violence,
lust or pornography; (3) offend any race or religion; (4)
tend to abet traffic in and use of prohibited drugs; and
(5) are contrary to law, public order, morals, and good
customs, established policies, lawful orders, decrees
and edicts;
(3) Those who shall sell, give away (distribute) or
exhibit films, prints, engravings, sculpture or literature
which are offensive to morals. (As amended by PD Nos.
960 and 969).
This offense in any of the forms mentioned in the
article is committed only when there is publicity.

Moral implies conformity with the generally accepted
standards of goodness and rightness in conduct or character,
sometimes specifically to sexual conduct.

Author of obscene literature is liable only when it is
published with his knowledge.

Test of Obscenity: The test is whether the tendency of the
matter charged as obscene, is to deprive or corrupt those whose
minds are open to such immoral influences and into whose
hands such a publication may fall and also whether or not such
publication or act shocks the ordinary and common sense of
men as an indecency. Indecency is an act against the good
behavior and a just delicacy. (US v Kottinger, 45 Phil 352). This
case though looked at isolated passages and madea decision. In
the Kalaw Katigbak case, the work was viewed suing the
dominant theme of the work to see if it appeals merely to
prurient interests.

Mere nudity in pictures or paintings is not necessarily obscenity.
The proper test is whether the motive of he picture as indicated
by it is pure or impure or whether it is naturally calculated to
excite impure imaginations.

LEO PITA- PINOY PLAYBOY vs. CA

On Obscenity

Magazines, publications and other reading materials believed to
be obscene, pornographic and indecent were confiscated and
burned.

"Whether to the average person, applying contemporary
standards, the dominant theme of the material taken as a whole
appeals to prurient interest." Kalaw-Katigbak measured
obscenity in terms of the "dominant theme" of the work rather
than isolated passages

In the case at bar, there is no challenge on the right of the State,
in the legitimate exercise of police power, to suppress smut
provided it is smut. For obvious reasons, smut is not smut simply
because one insists it is smut. So is it equally evident that
individual tastes develop, adapt to wide-ranging influences, and
keep in step with the rapid advance of civilization. As we said
earlier, it is the divergent perceptions of men and women that
have probably compounded the problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the
question is not, and has not been, an easy one to answer, as it is
far from being a settled matter. Lack of uniformity as to what
constitutes obscene.

Undoubtedly, "immoral" lore or literature comes within the
ambit of free expression, although not its protection. In free
expression cases, this Court has consistently been on the side of
the exercise of the right, barring a "clear and present danger"
that would warrant State interference and action.

As so strongly stressed in Bagatsing, a case involving the delivery
of a political speech, the presumption is that the speech may
validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be (1) clear
but also, (2) present, to justify State action to stop the speech.
Meanwhile, the Government must allow it (the speech). It has
no choice. However, if it acts notwithstanding that (absence of
evidence of a clear and present danger), it must come to terms
with, and be held accountable for, due process. The Court is
not convinced that the private respondents have shown the
required proof to justify a ban and to warrant confiscation of
the literature for which mandatory injunction had been sought
below. First of all, they were not possessed of a lawful court
order: (1) finding the said materials to be pornography, and (2)
authorizing them to carry out a search and seizure, by way of a
search warrant.

The fact that the former respondent Mayor's act was sanctioned
by "police power" is no license to seize property in disregard of
due process. In Philippine Service Exporters, Inc. v. Drilon, We
defined police power as "state authority to enact legislation that
may interfere with personal liberty or property in order to
promote the general welfare." They do not exempt our law
enforcers, in carrying out the right to due process of law and the
right against unreasonable searches and seizures, specifically. It
is basic that searches and seizures may be done only through a
judicial warrant, otherwise, they become unreasonable and
subject to challenge. We have indicated, speech is speech,
whether political or "obscene".

THE PEOPLE OF THE PHILIPPINES vs. ALOVA

Exhibit sa building ng immoral scenes and acts- act as
performers or exhibitionists to perform and in fact performed
sexual intercourse in the presence of many spectators- highly
immoral daw.. tapos police after the show conducted a raid and
made arrests..completely naked, lascivious acts, consisting of
petting, kissing, and touching the private parts of each other.
When sufficiently aroused, they lay on the bed and proceeded
to consummate the act of coitus in three different positions
which we deem unnecessary to describe. The four or five
witnesses who testified for the Government when asked about
their reaction to what they saw, frankly admitted that they were
excited beyond description.

We have had occasion to consider offenses like the exhibition of
still or moving pictures of women in the nude, which we have
condemned for obscenity and as offensive to morals. In those
cases, one might yet claim that there was involved the element
of art; that connoisseurs of the same, and painters and sculptors
might find inspiration in the showing of pictures in the nude, or
the human body exhibited in sheer nakedness, as models in
tableaux vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no redeeming
feature. In it, there is no room for art. One can see nothing in it
but clear and unmitigated obscenity, indecency, and an offense
to public morals, inspiring and causing as it does, nothing but
lust and lewdness, and exerting a corrupting influence specially
on the youth of the land. We repeat that because of all this,
the penalty imposed by the trial court on Marina, despite her
plea of guilty, is neither excessive nor unreasonable.

THE PEOPLE OF THE PHILIPPINE ISLANDS vs. Kotinger

The postcards/ pictures which it is argued offend against the
law on account of being obscene and indecent, disclose six
different postures of non-Christian inhabitants of the
Philippines. Exhibit A carries the legend "Philippines, Bontoc
Woman." (gets?)

Section 12 of the Philippine Libel Law, Act No. 277, provides
punishment, among other things, for any person when keeps for
sale, or exhibits, any obscene or indecent writing, paper, book or
other matter. The phrase in the law "or other matter," was
apparently added as a sort of "catch-all." The rule of ejusdem
generis is by no means a rule of universal application and should
be made to carry out, not to defeat, the legislative intent.

The word "obscene" and the term "obscenity" may be defined
as meaning something offensive to chastity; decency, or
delicacy.

Indecency is an act against good behavior and just delicacy.

The test ordinarily followed by the courts in determining
whether a particular publication or other thing is obscene
within the meaning of the statutes, is whether the tendency of
the matter charged as obscene, is to deprave or corrupt those
whose minds are open to such immoral influences and into
whose hands a publication or other article charged as being
obscene may fall. Another test of obscenity is that which
shocks the ordinary and common sense of men as an
indecency.

Laws penalizing obscenity are made for society in the aggregate
and not in particular. The test, therefore, is: What is judgment of
the aggregate sense of the community reached by the
publication or other matter? What is the probable reasonable
effect on the sense of decency, purity, and chastity of society
extending to the family?

The pictures which depict the non-Christian inhabitants of the
Philippine Islands as they actually live, without attempted
presentation of them in unusual posture of dress, are not
offensive to chastity, or foul, or filthy. Pictures portraying the
inhabitants of the country in native dress and as they appear
and can be seen in the regions, in which they live, are not
obscene or indecent.

THE PEOPLE OF THE PHILIPPINES vs. GO PIN

exhibited in a recreation center, a large number of one-reel
films allegedly indecent and/or immoral. For the sake of art- X
offensive

Paintings and pictures of women in the nude, including
sculptures of the kind are offensive to morals where they are
made and shown not for the sake of art but profit would
commercial purposes, that is, when gain and profit would
appear to be the main, if not the exclusive consideration in
their exhibition, and the case of art only of secondary or minor
importance.

Gain and profit would appear to have been the main, if not the
exclusive consideration in their exhibition; and it would not be
surprising if the persons who went to see those pictures and
paid entrance fees for the privilege of doing so, were not
exactly artists and persons interested in art and who generally
go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their
morbid curiosity and taste, and lust, and for love for
excitement, including the youth who because of their
immaturity are not in a position to resist and shield themselves
from the ill and perverting effects of these pictures. (This is a
dangerous test as the venue would dictate whether a work is
indecent or not. What about books sold in fully booked?)
GONZALEZ- MALAYA FILMS, LINO BROCKA vs. CHAIRMAN
MARIA KALAW KATIGBAK, BRMPT
The motion picture in question, Kapit sa Patalim was classified
"For Adults Only." There is the further issue then, also one of
first impression, as to the proper test of what constitutes
obscenity in view of the objections raised. Thus the relevance of
this constitutional command: "Arts and letters shall be under
the patronage of the State.

may pinapadelete- impermissible
restraint of artistic expression
The film is an integral whole and all its portions, including those
to which the Board now offers belated objection, are essential
for the integrity of the film. Viewed as a whole, there is no basis
even for the vague speculations advanced by the Board as basis
for its classification.
1. Motion pictures are important both as a medium for the
communication of Ideas and the expression of the artistic
impulse. Their effects on the perception by our people of issues
and public officials or public figures as well as the prevailing
cultural traits is considerable. The "importance of motion
pictures as an organ of public opinion lessened by the fact that
they are designed to entertain as well as to inform. There is no
clear dividing line between what involves knowledge and what
affords pleasure. If such a distinction were sustained, there is a
diminution of the basic right to free expression. This is not to say
that such freedom, as is the freedom of speech, absolute. It can
be limited if "there be a 'clear and present danger of a
substantive evil that [the State] has a right to prevent.
13

2. Censorship or previous restraint certainly is not all there is to
free speech or free press. If it were so, then such basic rights are
emasculated. It is however, except in exceptional circumstances
a sine qua non for the meaningful exercise of such right. This is
not to deny that equally basic is the other important aspect of
freedom from liability. Nonetheless, for the purposes of this
litigation, the emphasis should rightly be on freedom from
censorship. It is the opinion of this Court, therefore, that to
avoid an unconstitutional taint on its creation, the power of
respondent Board is limited to the classification of films. It can,
to safeguard other constitutional objections, determine what
motion pictures are for general patronage and what may require
either parental guidance or be limited to adults only. That is to
abide by the principle that freedom of expression is the rule and
restrictions the exemption. The power to exercise prior restraint
is not to be presumed, rather the presumption is against its
validity.


3. The test, to repeat, to determine whether freedom of
expression may be limited is the clear and present danger of an
evil of a substantive character that the State has a right to
prevent. Such danger must not only be clear but also present.
There should be no doubt that what is feared may be traced to
the expression complained of. The causal connection must be
evident. Also, there must be reasonable apprehension about its
imminence. The time element cannot be ignored. Nor does it
suffice if such danger be only probable.
4. The law, however, frowns on obscenity and rightly so. "All
Ideas having even the slightest redeeming social importance,
unorthodox Ideas, controversial Ideas, even Ideas hateful to the
prevailing climate of opinion have the full protection of the
guaranties, unless excludable because they encroach upon the
limited area of the First Amendment is the rejection of obscenity
as utterly without redeeming social importance.
5. There is, however, some difficulty in determining what is
obscene. "The early leading standard of obscenity allowed
material to be judged merely by the effect of an isolated excerpt
upon particularly susceptible persons. Regina v. Hicklin [1868]
LR 3 QB 360. Some American courts adopted this standard but
later decisions have rejected it and substituted this test:
whether to the average person, applying contemporary
community standards, the dominant theme of the material
taken as a whole appeals to prurient interest. The Hicklin test,
judging obscenity by the effect of isolated passages upon the
most susceptible persons, might well encompass material
legitimately treating with sex, and so it must be rejected as
unconstitutionally restrictive of the freedoms of speech and
press. On the other hand, the substituted standard provides
safeguards adequate to withstand the charge of constitutional
infirmity.
6. The above excerpt which imposes on the judiciary the duty to
be ever on guard against any impermissible infringement on the
freedom of artistic expression calls to mind the landmark
ponencia of Justice Malcolm in United States v. Bustos,
22

decided in 1918. While recognizing the principle that libel is
beyond the pale of constitutional protection, it left no doubt
that in determining what constitutes such an offense, a court
should ever be mindful that no violation of the right to freedom
of expression is allowable.
7. It is quite understandable then why in the Roth opinion,
Justice Brennan took pains to emphasize that "sex and obscenity
are not synonymous.
24
Further: "Obscene material is material
which deals with sex in a manner appealing to prurient interest.
The portrayal of sex, e.g., in art, literature and scientific works, is
not itself sufficient reason to deny material the constitutional
protection of freedom of speech and press. Sex, a great and
mysterious motive force in human life has indisputably been a
subject of absorbing interest to mankind through the ages; it is
one of the vital problems of human interest and public concern.
25

8. In the applicable law, Executive Order No. 876, reference was
made to respondent Board "applying contemporary Filipino
cultural values as standard,
26
words which can be construed in
an analogous manner. Moreover, as far as the question of sex
and obscenity are concerned, it cannot be stressed strongly that
the arts and letters "shall be under the patronage of the State.
27

That is a constitutional mandate. It will be less than true to its
function if any government office or agency would invade the
sphere of autonomy that an artist enjoys. There is no orthodoxy
in what passes for beauty or for reality. It is for the artist to
determine what for him is a true representation. It is not to be
forgotten that art and belleslettres deal primarily with
imagination, not so much with ideas in a strict sense. What is
seen or perceived by an artist is entitled to respect, unless there
is a showing that the product of his talent rightfully may be
considered obscene. As so wen put by Justice Frankfurter in a
concurring opinion, "the widest scope of freedom is to be given
to the adventurous and imaginative exercise of the human
spirit"
28
in this sensitive area of a man's personality. On the
question of obscenity, therefore, and in the light of the facts of
this case, such standard set forth in Executive Order No. 878 is
to be construed in such a fashion to avoid any taint of
unconstitutionality. To repeat, what was stated in a recent
decision
29
citing the language of Justice Malcolm in Yu Cong Eng
v. Trinidad,
30
it is "an elementary, a fundamental, and a
universal role of construction, applied when considering
constitutional questions, that when a law is susceptible of two
constructions' one of which will maintain and the other destroy
it, the courts will always adopt the former.
31
As thus construed,
there can be no valid objection to the sufficiency of the
controlling standard and its conformity to what the Constitution
ordains.
9. This being a certiorari petition, the question before the Court
is whether or not there was a grave abuse of discretion. That
there was an abuse of discretion by respondent Board is evident
in the light of the difficulty and travail undergone by petitioners
before Kapit sa Patalim was classified as "For Adults Only,"
without any deletion or cut. Moreover its perception of what
constitutes obscenity appears to be unduly restrictive. This
Court concludes then that there was an abuse of discretion.
Nonetheless, there are not enough votes to maintain that such
an abuse can be considered grave. Accordingly, certiorari does
not lie. This conclusion finds support in this explanation of
respondents in its Answer to the amended petition: "The adult
classification given the film serves as a warning to theater
operators and viewers that some contents of Kapit are not fit for
the young. Some of the scenes in the picture were taken in a
theater-club and a good portion of the film shots concentrated
on some women erotically dancing naked, or at least nearly
naked, on the theater stage. Another scene on that stage
depicted the women kissing and caressing as lesbians. And
toward the end of the picture, there exists scenes of excessive
violence attending the battle between a group of robbers and
the police. The vulnerable and imitative in the young audience
will misunderstand these scenes."
32
Further: "Respondents
further stated in its answer that petitioner company has an
option to have the film reclassified to For-General-Patronage if it
would agree to remove the obscene scenes and pare down the
violence in the film."
33
Petitioners, however, refused the "For
Adults Only" classification and instead, as noted at the outset,
filed this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited
to the concept of obscenity applicable to motion pictures. It is
the consensus of this Court that where television is concerned: a
less liberal approach calls for observance. This is so because
unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set. Children
then will likely will be among the avid viewers of the programs
therein shown. As was observed by Circuit Court of Appeals
Judge Jerome Frank, it is hardly the concern of the law to deal
with the sexual fantasies of the adult population.
34
it cannot be
denied though that the State as parens patriae is called upon to
manifest an attitude of caring for the welfare of the young.